THE TRIAL CHAMBER

DECISION ON PROSECUTION’S MOTION FOR JUDICIAL NOTICE
AND ADMISSION OF EVIDENCE

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

SEIZED of the Motion for Judicial Notice and Admission of Evidence (“Motion”) filed on 2 April 2004 by the Office of the Prosecutor (“Prosecution”) pursuant to Rules 73, 89, 92bis and 94 of the Rules of Procedure and Evidence of the Special Court (“Rules”);

NOTING the Response of Defence Counsel for Chief Sam Hinga Norman to Prosecution’s Motion for Judicial Notice and Admission of Evidence filed on 19 April 2004 (“Response”) and the Reply thereto, filed on 26 April by the Prosecution (“Reply”);
NOTING the Defence Motion Requesting an Extension of Time within which to Respond to Prosecution’s Motion for Judicial Notice and Admission of Evidence (“Motion for Extension of Time”), filed on 23 April 2004 by Counsel for Kondewa, and the Decision on Motion Requesting an Extension of Time within which to Respond to Prosecution’s Motion for Judicial Notice and Admission of Evidence, dismissing the Motion for Extension of Time of 30 April 2004;

NOTING also the Order Rejecting the Filing of the Defence Objection to Prosecution’s Motion for Judicial Notice and Admission of Facts of 5 May 2004;

NOTING further that no Responses were filed on behalf of the Accused Allieu Kondewa and Moinina Fofana within prescribed time limits;

NOTING THE SUBMISSIONS OF THE PARTIES

I. THE SUBMISSIONS

1. The Motion:

1. The Prosecution requests the Trial Chamber to take judicial notice of the facts set out in Annex A and the facts contained in the documents listed in Annex B of the Motion as ‘facts of common knowledge’ under Rule 94(A) of the Rules. Alternatively, it requests that these facts be admitted into evidence under Rules 89(B) and (C) and 92bis of the Rules.[1]
2. Annex A of the Motion contains a list of statements comparable to the facts presented by the Prosecution in the Request to Admit[2]. Annex B enlists -among others- various UN-documents and reports from Non-Governmental-Organisations.
3. The Prosecution emphasises that the function of the doctrine of judicial notice is to expedite proceedings and promote judicial economy which accords with the object and purpose of the Special Court and its limited temporal existence. It is submitted that the Court ‘must find the balance between the principle of judicial economy and the right of the Accused to a fair trial’.[3]
4. The Prosecution argues that pursuant to Rule 94(A) of the Rules, the Trial Chamber is under an obligation to take judicial notice of ‘facts of common knowledge’, interpreted by the ICTR in the Semanza case[4] to mean ‘those facts which are not subject to reasonable dispute including, common or universally known facts, such as general facts of history, generally known geographical facts and the law of nature’. According to the Prosecution, this includes authoritative documents such as those of the UN and affiliated bodies. The Prosecution also relies on the Nyiramasuhuko case[5] where judicial notice was taken only of the existence and authenticity of certain UN Security Council documents. According to the Prosecution, the definition of ‘common knowledge’ may extend to legal conclusions based on facts established beyond a reasonable doubt.[6]
5. The Prosecution emphasises that it is not seeking from the Court judicial notice of facts which directly attest to the guilt of any Accused but that the Court may only take judicial notice of notorious facts which cannot be reasonably disputed.[7]
6. The Prosecution argues that Rule 89(B) of the Rules provides a legal basis for the Chamber to take judicial notice of, or admit in evidence, certain facts when the interests of justice so require. According to the Prosecution, the Chamber has a broad discretion in determining what is relevant evidence under Rule 89(C) and that there is a principle of ‘extensive admissibility of evidence’ based on the competence of professional judges to evaluate evidence.[8]
7. The Prosecution submits that under Rule 92bis of the Rules, there is a two-prong test of relevance and the existence of the possibility of confirming the reliability of the evidence. The Prosecution contends that the documents in Annex B are relevant as they refer to the factual allegations as stipulated in the indictments and since they are authoritative sources their reliability can be confirmed by the documents themselves or by oral testimony.[9]
8. The Prosecution submits that, while judicial notice under Rule 94 of the Rules is mandatory, admitting evidence pursuant to Rules 89 and 92bis of the Rules is discretionary and urges the Chamber to exercise its discretion in favour of admitting the said documents as evidence.[10]

2. The Response:

9. In its Response, the Norman Defence concedes that the statements in (A), (B), (E), (P), (Q), and (W) in Annex A of the Motion may be judicially noticed. The Defence argues that the remaining statements are contestable and/or disputed assertions which the Prosecution must prove by evidence beyond reasonable doubt. To do otherwise, the Defence argues, would be to deny the Accused’s right to the presumption of innocence and to protection against self-incrimination.[11]
10. Moreover, the Defence submits that the need to expedite proceedings and judicial economy cannot override the burden of proof on the Prosecution to prove every allegation against the Accused.[12]
11. The Defence adopts the interpretation contained in the Semanza Decision of the phrase ‘facts of common knowledge’, quoted above.[13]
12. According to the Defence, in general the Court should not admit the documents into evidence under Rules 89 and 92bis of the Rules as that would be neither in consonance with the spirit of the Statute of the Special Court nor with general principles of law. However, the Defence submits that the UN Security Council resolutions, maps, peace agreements and treaties can properly be admitted into evidence. The other documents, it is argued, are reports and other pieces containing opinions, impressions and conclusions which violate the rule against hearsay, the audi et alteram partem rule and which do not satisfy the need for corroboration or cross-examination.[14]

100. The Reply

13. The Prosecution reasserts that all the facts deemed by the Defence as being contestable and/or disputable in Annex A are matters of common knowledge as envisaged by Rule 94 of the Rules and are therefore not issues of reasonable dispute, and that the documents listed in Annex B of the Motion are admissible in evidence under Rule 89 and Rule 92bis of the Rules.[15]
14. The Prosecution, therefore, submits that taking judicial notice of the facts in Annex A will not adversely affect the Accused’s right to the presumption of innocence until proof of guilt, nor his right to protection from self-incrimination, as it does not seek from the Court an order to take judicial notice of facts directly attesting to the alleged guilt of any of the Accused. Moreover, the Prosecution reiterates that taking judicial notice of these facts would promote judicial economy without negatively affecting the rights of the Accused.[16]

II. DELIBERATION

I. Introduction

15. This Motion invokes the jurisdiction of this Court with respect to the application of one of the law’s oldest doctrines, namely the doctrine of judicial notice. To underscore the universality of the doctrine, it is important to note that though the doctrine, as is understood today, can be traced back to its common law origins, yet it has received recognition in some civil law jurisdictions but not in others.[17] It is imperative, therefore, preliminarily, for the court to expound on the nature and scope of the doctrine nationally and internationally as a basis for examining the merits of the Motion.

II. Order Requested

16. The Motion seeks from the Trial Chamber an order judicially noticing the proposed facts recited in Annex A as well as those enumerated in the documents listed in Annex B as facts of common knowledge, pursuant to Rule 94(A) of the Rules or, in the alternative an order admitting the same in evidence pursuant to Rules 89 and 92bis of the Rules and in accordance with the spirit of the Statute of the Special Court and the principles of fairness.

III. Legal Basis for Motion

17. The Prosecution’s Motion is, as regards the primary or main order, filed pursuant to Rule 94(A) of the Rules which provides that:

“A Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.”

In respect of the secondary or alternative order, the Motion is brought under Rules 89(C) and 92bis of the Rules. According to Rule 89(C) of the Rules:

“A Chamber may admit any relevant evidence.”

Further, Rule 92bis of the Rules enacts as follows:

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

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

IV. The Doctrine: Common and Civil Law Perspectives

18. Judicial notice is “the means by which a court may take as proven certain facts without hearing evidence.[18] The principle underlying the doctrine of judicial notice has been variously stated. It was clearly articulated by the English Court of Appeal in the recent case of Mullen v. Hackney London Borough Council[19] in these terms:

“It is well established that the courts may take judicial notice of various matters when they are notorious or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary (see Phipson on Evidence, 14th edn., 1990 CL 2/06).”

Continuing, the Court noted:

“Generally, matters directed by statute, or which have been so noticed by the well-established practice or precedents of the Court, must be recognized by the judges; but beyond this, they have a wide discretion and may notice much which they cannot be required to notice. The matters noticeable may include facts which are in issue or relevant to the issue; and the notice is in some cases conclusive and in others merely prima facie and rebuttable (see Phipson Ch2/07).”

Concluding, the Court remarked:

“Moreover, a judge may rely on his own local knowledge where he does so properly and within reasonable limits”. This judicial function appears to be acceptable where “the type of knowledge is of a quite general character and is not liable to be barred by specific individual characteristics of the individual case.” This test allows a judge to use what might be called “special” (or local) general knowledge (see Phipson Ch 1/09).”

19. As to its scope in English law, courts are enjoined to be cautious in treating a factual conclusion as obvious, even though the man in the street would unhesitatingly hold it to be so.[20] It is also the law that judges and juries may, in arriving at their decisions, use their general information and that knowledge of the common affairs of life which men of ordinary intelligence possess, they may not act on their own private knowledge or belief regarding the facts of the particular case.[21]
20. By way of comparison, the American version of the doctrine bears significant juridical affinity to the English model. At the federal level, judicial notice is covered by either Rule 44.1 of the Federal Rules of Civil Procedure or Rule 26.1 of the Federal Rules of Criminal Procedure. Under these provisions, an American court can take judicial notice of a fact if it is “not subject to reasonable dispute” and falls within one of two categories: (a) if it is “generally known within the territorial jurisdiction of the trial court” or (b) if it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”. Federal Rule 201 cover is limited in scope and governs only “adjudicative facts”.

V. The Doctrine: International Criminal Law Perspectives

21. In the context of international criminal law, it has been observed that the doctrine “has had a significant but unhappy existence”.[22] Despite this profile of the doctrine in international criminal law, its importance in the field is unequivocally acknowledged to be that of significantly expediting trials.[23] One such viewpoint is that “the failure to exercise [judicial notice] tends to smother trials with technicality and monstrously lengthens them out”.[24]
22. With the foregoing brief analysis of national criminal and international criminal law perspectives of the doctrine, the Chamber now proceeds to ascertain the evolving applicable jurisprudence as it can be deduced from the practices of international criminal tribunals antecedent to this Court[25], notably, the International Criminal Tribunal for former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”).
23. Briefly, the Chamber notes that the practice of judicial notice in those tribunals revolves around Rule 94 of the Rules of Procedure and Evidence of both tribunals as the statutory authority for the doctrine. Their Rule 94 is ipssissima verba with Rule 94 of the Rules which is in these terms:

“(A) A Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.

(B) At the request of a party or proprio motu, a Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Special Court relating to the matter at issue in the court proceedings”.

24. As to its scope, the Chamber takes the view that, from a plain and literal construction of Rule 94 of the Rules, the said Rule authorises either the Trial or Appeals Chamber to take judicial notice of three (3) categories of facts: (i) facts of common knowledge, (ii) adjudicated facts from other proceedings before the Court, and (iii) documentary evidence from other proceedings before the Court. The obligation is mandatory. As was stated in the Semanza Decision which this Court applies persuasively as being logical and consistent with the plain meaning and intendment of the Rule, the rationale behind the doctrine is twofold: (i) to expedite the trial by dispensing with the need to submit formally proof on issues that are patently indisputable, and (ii) to foster consistency and uniformity of decisions on factual issues where diversity in factual findings would be unfair.[26]
25. Evidently, in the Chamber’s opinion, Rule 94(A) of the Rules does require judicial cognisance of only facts which rise to a threshold level of “common knowledge”, which interpretation of the rule is clearly supported by case-law authorities from ICTY and ICTR, two such decisions being rendered in the cases of Prosecutor v. Tadic[27] and Prosecutor v Ntagerura et al [28], which this Chamber finds to be logical and consistent with the plain and literal meaning of the rule and its purpose, and will therefore apply persuasively.
26. As a matter of statutory significance, the Chamber finds that the expression “common knowledge” has been, and continues to be, the subject of subtle legal interpretation. Instructively, in the Semanza Decision[29], the Trial Chamber took the view that the phrase includes facts “...so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary.” Professor Bassiouni and Manikas have also suggested that the interpretation of “facts of common knowledge” does cover and extend to all “those facts which are not subject to reasonable dispute, including common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature.”[30]
27. The Chamber further notes that despite the exacting requirement that facts must rise to a level of “common knowledge” to be judicially noticed, yet there is authority for the proposition that “a proposition need not to be universally accepted in order to qualify as common knowledge”[31], implying that courts may take judicial notice of facts that are not scientifically provable or beyond all dispute under Rule 94(A) of the Rules.[32]
28. In the Chamber’s view, another key principle for which the Semanza Decision is authority as to the scope of Rule 94(A) of the Rules relates to the issue of to whom a fact or proposition must commonly be known to qualify for judicial cognisance. On this issue, the Court had this to say:

“... ‘common knowledge’ encompasses those facts that are generally known within a tribunal’s jurisdiction or capable of accurate and ready determination by resort to sources whose accuracy cannot be called in question.”[33]

29. By logical deduction, in the Chamber’s estimation as a matter of statutory construction, commonly known but inaccurate facts cannot be judicially noticed within the meaning and intendment of Rule 94(A) of the Rules. Therefore, based on the reasoning in the Semanza Decision, once a Court makes a preliminary determination that a fact is one of common knowledge within a court’s jurisdiction, it must then proceed to a judicial evaluation of whether the fact merits the characterization of one that is “reasonably indisputable”.
30. Guided, therefore, persuasively by the Semanza Decision as to the legal criteria applicable under Rule 94(A) of the Rules in determining the merits of applications for judicial notice brought before international criminal tribunals, the Chamber will now proceed to evaluate the merits or otherwise of the Prosecutions Motion for judicial notice.

VI. Evaluation of Application’s Merit under Rule 94(A) of the Rules

31. Having determined the applicable jurisprudence on the subject of judicial notice, the Chamber now undertakes an evaluation of the merit or otherwise of the Motion based on the foregoing exposition of the law in the international criminal law field, evidently recognising the doctrine’s contribution in the national criminal law systems as a basis for its application in the international criminal law field.
32. The Chamber has carefully examined and reviewed each of the alleged facts enumerated in Annex A of the Prosecution’s Motion. The Chamber notes that there are few challenges by the Counsel for the Accused Norman to some of the alleged facts, and that the said Accused agrees that alleged facts (A), (B), (E), (P), (Q), and (W) may be judicially noticed. The Chamber further notes that no responses were filed on behalf of the Accused Fofana and Kondewa. Applying the relevant jurisprudence and being judicially sensitive to the need to protect the right of each Accused to a fair trial in matters of this nature and seeking to strike a balance between judicial economy and the said right, the Chamber finds as follows in respect of Annex A:

(i) that alleged facts (A), (B), (D), (E) (F), and (W) do qualify for judicial notice as formulated;

(ii) that alleged facts (H), (K), (L), (M), and (U) do qualify for judicial notice in a judicially modified form as listed in Annex I to this Decision;

(iii) that all other so-called facts of common knowledge listed in Annex A do not qualify for judicial notice for the reason that they are not beyond reasonable dispute;

(iv) that the facts found to qualify for judicial notice:

(a) are relevant to the case against the Accused persons;

(b) are they are not subject to reasonable dispute;

(c) do not include any legal findings or characterizations; and

(d) do not attest to the criminal responsibility of any of the Accused.

The facts judicially noticed are deemed conclusively proven.

33. By parity of reasoning, the Chamber has carefully examined and reviewed each of the documents enumerated in Annex B of the Prosecution’s Motion. As regards the enumerated documents, the Chamber, applying the relevant jurisprudence makes the following findings:

(i) As to their existence and authenticity:

(a) Documents 9-21 do qualify for judicial notice;

(b) Documents 31-32 do qualify for judicial notice;

(ii) As to their existence, authenticity and contents:

(a) Documents 22-30 do qualify for judicial notice;

(b) Documents 33-39 do qualify for judicial notice;

(iii) that the rest of the documents so enumerated do not qualify for judicial notice, for the reason that either their existence and authenticity or their existence, authenticity and contents as the case may be are not beyond reasonable dispute.

The documents judicially noticed are also deemed conclusively proven as to their existence and authenticity. The said Documents are annexed to this Decision in Annex II.

34. The foregoing findings of conclusiveness, in the Chamber’s view, concludes the evidentiary inquiry in respect of these facts. We rule that these judicially noticed facts of common knowledge cannot be challenged at the trial of the Accused herein predicated upon our prior finding that they are beyond reasonable dispute.

Evaluation of Application’s Merit Under Rule 89 and 92bis of the Rules

35. The Trial Chamber finds no basis in law, at this stage, without more, to enable it to assess whether the presumed reliability of the alleged facts and documents not accorded judicial notice in pursuance of Rule 94(A) even if relevant for the purposes in respect of which they are submitted, is susceptible of confirmation.

III. DISPOSITION

Pursuant to Rule 94(A) of the Rules,

HEREBY GRANTS the Prosecution’s Motion in respect of the facts enumerated in Annex I to this Decision, which Annex embodies some of the facts contained in Annex A of the Prosecution’s Motion; and DENIES the said Motion in respect of all other facts as listed in the aforesaid Annex A;

GRANTS the Prosecution’s Motion in respect of the documents enumerated in Annex II part I to this Decision, but only in so far as their existence and authenticity are concerned and in Annex II part II in so far as to their existence, authenticity and contents are concerned, which Annex embodies some of the documents contained in Annex B of the Prosecution’s Motion; and DENIES the said Motion in respect of all other documents listed in the aforesaid Annex A.

[1] Motion, paras 6-8.
[2] Prosecutor’s Request to Admit, 5 March 2004.
[3] Id., paras 9 and 13.
[4] Prosecutor v. Laurent Semanza, ICTR-97-20, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts pursuant to Rules 94 and 54, 3 Nov. 2000 (“Semanza Decision”), para. 25.
[5] Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, ICTR-97-21-T, Prosecutor v. Sylvain Nsabimana, Alphonse Nteziryayo, ICTR-97-29A and B-T, Prosecutor v. Joseph Kanyabashi, ICTR-96-15-T, Prosecutor v. Elie Ndayambaje ICTR-96-8-T, Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002.
[6] Motion, paras 15-16, 19-20.
[7] Id., para. 23.
[8] Id., paras 28-30.
[9] Id., para. 31.
[10] Id., para. 33.
[11] Response, paras 1-3.
[12] Id., para. 4.
[13] Id., para. 5.
[14] Id., paras. 6-7.
[15] Reply, paras 3, 17-18.
[16] Id., paras 15-16.
[17] See an instructive article on the subject entitled: “Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent” by James G. Stewart in International Criminal Law Review 3, 2003, p. 245-274. See also a Paper entitled “Presumptions and Judicial Notice” by Michael A. Patterson and Edward J. Walters Jr., Baton Rouge Bar Association, 1998 Bench Bar Conference, Alabama. One example of a civil law system adoption of the doctrine is Section 244(3) of the German Criminal Procedural Code which promulgates thus: “An application to take evidence shall be rejected if the taking of such evidence is inadmissible. In all other cases, an application to take evidence may be rejected only if the taking of such evidence is superfluous because the matter is common knowledge, if the fact to be proved is irrelevant to the decision or has already been proved...”. Article 90 of the recently adopted Russian Penal Code also deals with the theme of previously adjudicated facts. By contrast, the Austrian Penal Code 1975, does not embody any provision recognising the doctrine of judicial notice presumably due to the existence of the inquisitorial system which envisages a strong role for the judge in the process of gathering evidence, especially the investigative judge in pre-trial proceedings, which do not allow the parties to request that judicial notice be taken of facts (See Federal Law Gazette, no 631/1975 as amended by the Federal Law Gazette 15/2004). Also the Slovenian Criminal Procedure Act does not recognise the doctrine of judicial notice (See Zakon o Kazenskem Postopku, Ur.1 RS st 116/2003).
[18] The Concise Oxford Dictionary of Law, 2nd ed. 1992 at 223; see also Black’s Law Dictionary, 7th ed. 1999 at 851
[19] Mullen v. Hackney London Borough Council, [1997] 1WLR 1103.
[20] Carter v. Eastbourne, B.C. 164 J.P. 233 DC.
[21] R. v. Sutton (1816) 4 M. & S. 532.
[22] See Stewart, supra note17, p. 245.
[23] Id., p. 245.
[24] See Thayer, I, Preliminary Treatise on Evidence, 809 (1898) cited in Stewart, supra note17.
[25] Historically, it is noteworthy that Article 21 of the Charter of the International Military Tribunal for Germany provided for judicial notice to be taken of facts of common knowledge.
[26] Semanza Decision, supra note 4, para. 20. See also Prosecutor v. Simic et al, Decision on the pre-trial motion by the Prosecution requestin the Trial Chamber to take judicial notice of the international character of the conflict in Bosnia-Herzegovina, 25 March 1999, p. 3: “The purpose of judicial notice under Rule 94 is judicial economy... and ... a balance should be struck between judicial economy and the right of the accused to a fair trial”.
[27] I-94-1-AR72, Transcripts of Hearing on Interlocutory Appeal on Jurisdictional Challenge, 7 September 1995 at p. 108: “the Tribunal must in the interests of fairness take judicial notice of notorious facts”.
[28] ICTR-99-46-T, 4 July 2002, Oral Decision, p. 9: Accordingly the Chamber must, pursuant to the provisions of Rules 94(A), take judicial notice of this fact of common knowledge.”
[29] Semanza Decision, supra note 4, para. 25.
[30] The Law of International Criminal Tribunal for the former Yugoslavia, New York: Transnational Publishers Inc, 1996 (cited with approval in the Semanza Decision).
[31] Semanza Decision, supra note 4, para. 31.
[32] Stewart, supra note 17, p. 249.
[33] Semanza Decision, supra note 4, para. 23.