TRIAL CHAMBER I

Public Document

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

TRIAL CHAMBER I (“Trial Chamber”) 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 objection by Defence Counsel for the 3rd Accused, Augustine Gbao, made orally on the 21st and 24th of July, 2006 during the testimony at trial of protected Witness TF1-371;

MINDFUL of the Prosecution’s oral response thereto;

NOTING that on the 24th of July, 2006, the Hon. Justice Thompson delivered two oral rulings in which the majority of the Chamber comprising of Hon. Justice Bankole Thompson and Hon. Justice Benjamin Mutanga Itoe granted the Defence objection and ordered that the evidence in question was inadmissible and should be expunged and excluded from the records;[1]

MINDFUL of the fact that Hon. Justice Pierre Boutet issued a Dissenting Opinion to the Chamber Majority Decision;

NOTING that the Chamber indicated at that time that a reasoned written Ruling on this matter would be delivered in due course;

PURSUANT to Article 17 of the Statute of the Special Court for Sierra Leone and Rules 26bis and 89 of the Rules of Procedure and Evidence of the Court (“Rules”);
THE TRIAL CHAMBER HEREBY ISSUES ITS REASONED WRITTEN RULING:

I. BACKGROUND

1. In the objection whose merits are under review, it is pertinent to note that Counts 3 to 5 of the Indictment against the three Accused, charges them for alleged unlawful killings[2] and with particular reference to those that took place in Kono.
2. On the 20th of July, 2006, Learned Counsel, Mr. Cammegh for the 3rd Accused, in the course of the examination-in-chief of this witness, TF1-371, indicated that he was flagging for a possible objection, which, was an option he was leaving open, on the trend of evidence which tended to show that his Client, Augustine Gbao, knew about the alleged killings in Kono District.
3. We observe that this witness is the last to testify before the Prosecution proceeds to close its case during this trial of the RUF case which ends on Wednesday, the 2nd of August, 2006.
4. In the course of his testimony on the 21st and on the 24th of July, 2006, this witness positively alleged that Issa Sesay, Morris Kallon and Augustine Gbao knew about the killings in Kono District.

II. THE BASIS FOR THE OBJECTION

5. Learned Counsel, Mr. Cammegh, on the 21st of July, and further, on the 24th of July 2006, objected to the admission of the evidence led by the Prosecution to the effect that his Client, Augustine Gbao, knew about the alleged killings in Kono District. He premised his objection on the following grounds:
   1. That this was the very first time that this witness was affirmative that his Client, Augustine Gbao, knew of the alleged unlawful killings in Kono District.
   2. In this regard, Learned Counsel argued that in an earlier statement to the Investigators on this issue, this witness was not that affirmative of Gbao’s knowledge of the killings in Kono District and that he merely stated, and rather speculatively, that Gbao may have had knowledge of the said killings in Kono District.
   100. That since the case for the prosecution opened in 2004, evidence has been led by the Prosecution to establish the killings in Kono District but that no evidence has been adduced to establish that his client either partook in these killings or had knowledge and control over them.

Learned Counsel explained that in the absence of any evidence implicating his Client in these unlawful killings, he advised himself professionally, and for strategic reasons, not to cross-examine the witnesses who had testified about the said killings and who, in any event, had not incriminated his Client in relation thereto. Mr. Cammegh stated that it would have been professionally risky and reckless for him to cross-examine witnesses who had not testified against his Client as this would have put him in jeopardy of a possible incrimination during his own cross examination which, to him, having regard to the state of the evidence at that stage, was unnecessary.

4. Learned Counsel, Mr. Cammegh, argued that his client is now confronted with evidence of an incriminating nature and rather belatedly, not only at the verge of the close of the case for the Prosecution, but also from the last witness before the Prosecution’s case is closed.

6. He argues that admitting this piece of evidence at this stage would violate the principle of fundamental fairness in that his Client would have been ambushed by the Prosecution to face a new and incriminating allegation for which he forfeited his right to cross-examine for reasons indicated earlier, and for which he has had no opportunity of investigating for the purposes of cross-examining this witness at this belated stage of the proceedings.
7. As a remedy, Learned Counsel, Mr. Cammegh, makes three proposals:
   1. That in conformity with the jurisprudence of This Chamber, he is entitled to an adjournment to investigate these new allegations made by this witness against his client. He however adds that this would occasion an undue delay to the proceedings.
   2. That in the process, he will need to recall and cross-examine the witnesses who have already testified for the Prosecution on the alleged killings in Kono and who, for professional and strategic reasons, he abstained from cross-examining. Here again, Mr. Cammegh argues that even this option will occasion an undue delay in these proceedings.
   3. That the Chamber excludes all the evidence that this witness has given and which tends to incriminate his client in relation to the alleged unlawful killings in Kono.
8. Learned Counsel, as far as these three options are concerned, submits that the 3rd proposal is more in consonance with the doctrine of fundamental fairness and of ensuring the expeditiousness of the Trial and that the first and second alternatives will occasion an undue delay of the proceedings.
   

III. SUBMISSIONS BY THE PROSECUTION

9. The Prosecution moves that the objection be dismissed and submits that the evidence is admissible pursuant to the principle of orality and in the interest of justice.[3] They submit that this Witness, TF1-371, was added to the Witness List only on 6 April 2006, following a Decision of this Court. Thereafter, his original redacted and unredacted witness statements were disclosed to the Defence. Similarly, any subsequent statement by this witness has been promptly disclosed. They argue that there has been no breach of disclosure obligations by the Prosecution.[4]
10. The Prosecution concedes that the subsequent witness statement of this Witness, as indicated by the Defence, contains more than a simple amplification of what is contained in the previous statement of this Witness concerning the alleged involvement of the 3rd Accused in the allegations of unlawful killings in the Kono District.[5]
11. However, the Prosecution indicates that the Witness was the only insider witness who was in possession of this particular piece of evidence that is contested by Counsel for the Gbao Defence.[6] In addition, the Prosecution indicates that as early as January, 2005, other witnesses, citing in particular protected Witness TF1-071, testified on the role of the 3rd Accused as the Overall Security Commander and that he was, i) a senior commander reporting directly to the high command and, ii) that in that capacity, was directly responsible for all intelligence information received from the RUF in RUF-occupied zones and from the various Units under his control.[7]
12. The Prosecution submits that the 3rd Accused is therefore criminally responsible for the allegations of unlawful killing in the Kono District pursuant to the doctrine of joint criminal enterprise and that of superior responsibility. The Prosecution also indicates that the 3rd Accused is charged in the Amended Consolidated Indictment under these modes of liability and, in particular, refers to para. 32 of the said Indictment for further reference on the 3rd Accused’s role as Overall Security Commander. [8]
    

IV. DELIBERATION

13. We would like to say here, that contrary to the emphasis laid by the Prosecution on its having fulfilled disclosure obligations, Learned Counsel for the 3rd Accused has not premised his objection to the admissibility of the contested evidence on the grounds of a breach by the Prosecution, of disclosure obligations under Rule 66 of the Rules of Procedure and Evidence.
14. In addition, we do not consider it appropriate at this stage to delve into determining the issues of joint criminal enterprise and of superior responsibility as the Prosecution urges us to, because, we are of the opinion that it would be premature, in a dispute that is centred on the admissibility of a particular piece of evidence without more, for us to embark on examining and determining the substantive and core issue of criminal responsibility that, in our judgement, should be reserved for a later stage.
15. The objection is based mainly and principally, as Counsel argued, on the grounds that if the evidence that is being earmarked for exclusion were admitted, this would be in violation of the doctrine of fundamental fairness, which all parties are entitled to in any proceeding.
16. As far as the Accused is concerned, the Statute lays out his right to a fair trial in its Article 17(2) which provides as follows:

The Accused shall be entitled to a fair and public hearing.

17. In this regard, the fairness of a trial is determined, inter alia, by the opportunity given to the accused, as stipulated in Article 17 (4) (e) of the Statute, “to examine or have examined the witnesses against him or her ...”.
18. Rule 26bis of the Rules of Procedure and Evidence, still on the issue of fairness, also 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 of the rights of the Accused and due regard for the protection of victims and witnesses.

19. Moreover, Article 17(4)(c) of the Statute, in relation to the element of expeditiousness of the trial, provides that the Accused is entitled to be tried “without undue delay”.
20. The Prosecution advances the argument that the 3rd Accused, from the content of the Indictment, is aware of the killings that are alleged against him in the Kono District and should be deemed to have known about them within the context of command or superior responsibility for which he is also charged. We reject this argument because it is infact trite law that a fact in issue is not considered proven because it is alleged in the indictment. We take the traditional legal position that evidence must be adduced by the Prosecution to prove whatever it alleges in the Indictment including of course, the allegation of unlawful killings in Kono District against the 3rd Accused.
21. In determining the application of these legal provisions to the arguments raised by the Defence and the Prosecution to sustain their respective thesis, we would like to observe, as the Prosecution indeed concedes, that the evidence of the 3rd Accused’s knowledge of the alleged unlawful killings in Kono, even though alleged in the indictment, is being adduced for the very first time through this witness at the verge of the closure of the case for the Prosecution when the Defence, for the professional and strategic reasons, was put in a position by the Prosecution where it deliberately abstained from cross-examining in previous proceedings, the Kono crime based witnesses who in any event, did not incriminate the 3rd Accused in their testimony.
22. One of the procedural tenets that is encapsulated in the doctrine of fundamental fairness in a trial is the imperative necessity for a party to be given or allowed the opportunity to examine or to cross-examine witnesses that have been called for or against him and this, with a view to testing the veracity of the evidence so adduced.
23. If at this late stage of the trial, this Chamber were to admit the evidence now proffered by this witness and which now incriminates the 3rd Accused, the doctrine of fundamental fairness obliges us as a Chamber, not only to allow the Defence to recall the witnesses who have testified on this incident, but also to adjourn the proceedings so that the Defence can conduct their own investigations prior to the recall of those witnesses in order to enable them to be fully equipped and prepared to properly conduct the said cross-examination.
24. We do observe, however, that if we were to grant this apparently credible alternative, this Chamber could be seen to be in violation not only of the provisions of Article 17 of the Statute, but also those of Rule 26bis of the Rules of Procedure and Evidence since such a decision would necessarily occasion an undue delay to the proceedings and more importantly, put on hold, the decision by the Prosecution to close its case during this current session of the trial.
25. This Chamber is enjoined by Rule 26bis of the Rules of Procedure and Evidence to conduct our proceedings in accordance with the provisions of the Agreement, the Statute and the Rules all of which, as the controlling and guiding Instruments of this Court, place a very high premium on the necessity for the proceedings to be conducted fairly and expeditiously, with full respect for the rights of the Accused and due regard for the protection of victims and witnesses.
26. It is our duty, therefore, as a Chamber, to hold the balance properly and to ensure that all these principles are adhered to and applied at all levels of the proceedings, depending of course on the prevailing circumstances and the stage at which we are with the trial. Indeed, this Chamber is vested with the jurisdictional prerogative to make decisions on issues before it provided that such decisions are in consonance with these principles and to ensure that how they accord with established principles of law and of fundamental fairness.
27. In this regard, it is our duty to control the admission of evidence and the mechanisms that govern the process and to ensure that only evidence of facts which are relevant and are not prejudicial to the due process rights of any of the parties is admitted on the record.
28. We agree that in the exercise of these functions, the Chamber enjoys the latitude to grant an adjournment if it deems it appropriate for the proper and fair determination of the case. The Chamber could also, if it deems it necessary and appropriate, to reject the admission of a particular piece of evidence, or order its exclusion from the records if the Chamber satisfies itself that it already forms part of the record of proceedings.
29. The jurisprudence of this Chamber has already enunciated the principles on how to treat some evidence adduced by the Prosecution where it is considered that it is new and that its admission will be prejudicial to the rights of the Accused under any of the rubrics of Article 17 of the Statute of the Court, and that its exclusion is one of the remedies. In our Decision granting the exclusion of certain portions of the evidence of Witness TF1-195, We had this to say:

in the particular circumstances at hand, this Chamber finds that the Prosecution has failed to promptly exercise due diligence that is required in discharging its duty to disclose to the Defence all of the information in its possession in accordance with Rule 66 of the Rules, and given the gravity of the allegations, is satisfied that this is a proper case in which to apply the remedy of exclusion.[9]

30. In this case, the Chamber, from the records, knows that evidence of the 3rd Accused being aware of the alleged unlawful killings in Kono as testified to by Witness TF1-371 who the Prosecution admits, is the only insider witness who was in possession of this particular piece of evidence, is already in the records.
31. It is our considered view that given the fact that the closure of the case for the Prosecution is imminent, granting an adjournment to the Defence to investigate their case further on the alleged killings in Kono and to adjourn the case for the Defence to fulfil these objectives and recall witnesses for the Prosecution who have already testified, would, in our opinion, be in violation of the provisions of Article 17 of the Statute and of Rule 26bis of the Rules of Procedure and Evidence, as this option will certainly occasion an undue delay of the trial process as well as it would impair the principle of expeditiousness of the proceedings.
32. In the case of the Prosecutor v. Zejnil Delalic et al., the Trial Chamber of the ICTY had this to say:

It is part of the duties of the Trial Chamber... to ensure that a trial is fair and expeditious. It is, therefore, within the competence of the Trial Chamber to exclude any piece of evidence sought to be introduced by the Prosecution, if indeed it seeks to do so, without having given the Defence the opportunity to examine that piece of evidence beforehand and thereby enable it to prepare a proper defence.... It is also within its inherent power to control the conduct of proceedings that the Trial Chamber may grant or reject an objection made by the Defence to the admission of any piece of evidence which it claims it has not had sufficient time to examine.[10]

33. In the light of the preceding, we are of the opinion that the only credible remedy available to us is to uphold the submissions and objection raised by Learned Counsel, Mr. Cammegh.
    

WE ACCORDINGLY DO ORDER AS FOLLOWS:

THAT all the evidence that is on the record emanating from Witness TF1-371 which directly or inferentially states or suggests that the 3rd Accused, Augustine Gbao, had knowledge of the alleged unlawful killings in Kono District be expunged and deleted from the records;

THAT no reference should be made, in whatever circumstance, to such evidence;

THAT pursuant to our Oral Ruling delivered on the 2nd of August, 2006, This Chamber will file a Consequential Order that will specify the exact portions of the transcripts that will be expunged.

Hon. Justice Bankole Thompson, Presiding Judge appends a Separate and Concurring Opinion to this Chamber Majority Decision; and

Hon. Justice Pierre Boutet appends a Dissenting Opinion to this Chamber Majority Decision.

[1] Transcripts of 24th of July 2006, pages 34 and 47.

[2] Counts 3 to 5 of the Indictment are grouped under the heading of unlawful killings and refer specifically to: Count 3, extermination, a crime against humanity; Count 4, Murder, a crime against humanity, and Count 5, Murder, a war crime.

[3] Transcripts, 24 July 2006, p. 26-27.
[4] Transcripts, 21 July 2006, 21-22.
[5] Transcripts, 21 July 2006, p. 21.
[6] Transcripts, 24 July 2006, p. 29, 32.
[7] Transcripts, 21 July 2006, p. 23-24.
[8] Transcripts, 21 July 2006, p. 26-27, 29.
[9] Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, Ruling on Disclosure Regarding Witness TF1-195, 4 February 2005, para. 7. See also Id., Decision on Defence Motion to Request the Trial Chamber to Rule that the Prosecution Moulding of Evidence is Impermissible, 1 August 2006, para. 15.
[10] Prosecutor v. Delalic et al., IT-96-21-T, Decision on Motion by the Defendants on the Prosecution of Evidence by the Prosecution, 8 September 1997, para. 9.