TRIAL CHAMBER I

DISSENTING OPINION OF JUSTICE PIERRE BOUTET ON THE MAJORITY DECISION ON REQUEST FOR LEAVE TO APPEAL DECISION ON PROSECUTION MOTION FOR A RULING ON ADMISSIBILITY OF EVIDENCE

1. With due respect for my Learned Brothers Justice Bankole Thompson and Justice Benjamin Mutanga Itoe I cannot agree with their analysis nor can I agree with their findings and disposition of this Motion and I therefore append this brief Dissenting Opinion.

I. INTRODUCTION

2. This Decision is in response to the Motion of the Prosecution seeking leave to appeal the Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence issued on the 24th of May, 2005 (“Impugned Decision”), considering whether evidence of sexual violence may be adduced at trial in support of existing Counts in the Consolidated Indictment against the Accused. I previously appended a Dissenting opinion also to the Impugned Decision.

3. For the purposes of this Decision, I adopt the introductory portions set forth in the Majority Decision that include a preamble to this Motion and the submissions of the parties.

II. DISCUSSION

Applicable Standards for Leave to Appeal

4. Leave to appeal is being sought by the Prosecution pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”) which provides that:

Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders.

5. According to the established jurisprudence of the Special Court, Rule 73(B) of the Rules generally does not confer a right of interlocutory appeal but only grants leave to appeal in exceptional cases, while the criteria of exceptional circumstances and irreparable prejudice outlined in Rule 73(B) of the Rules represent two limbs of the test and are conjunctive and must both be satisfied;[1]

6. Worthy of note in the context of the present discussion is that, in the Chamber’s prior ruling in the case of Prosecutor against. Sesay, Kallon and Gbao, the Chamber stated that:

[T]he overriding legal consideration in respect of an application for leave to file an interlocutory appeal is that the applicant’s case must reach a level of exceptional circumstances and irreparable prejudice. Nothing short of that will suffice having regard to the restrictive nature of Rule 73(B) of the Rules and the rationale that criminal trials must not be heavily encumbered and consequently unduly delayed by interlocutory appeals.[2]

7. I also note, more particularly, that this Chamber in its Decision on Request by First Accused for Leave to Appeal Against the Trial Chamber’s Decision on Presentation of Witness Testimony on Moyamba Crime Base, rendered on the 24th of May, 2005, considered as follows:

[t]hat the fact of judicial dissent amongst the Judges of the Trial Chamber on the applicable law and procedure applied in the Impugned Decision does not in itself constitute an exceptional circumstance, although the nature and significance of the matters sought to be appealed, in conjunction with the fact of dissent, might be considered as factors relevant to this determination;[3]

Leave to Appeal the Impugned Decision Should be Granted in the Present Circumstances

8. I am of the opinion that this Motion should be granted in that it meets the criteria of exceptional circumstances and irreparable prejudice prescribed by Rule 73(B) of the Rules and, consequently, the Prosecution should be allowed to appeal the Decision on Admissibility of Evidence before the Appeals Chamber.

9. The Motion raises serious issues that concern the admissibility of evidence in the trial against the Accused that could consequently impact on the fairness of the trial proceedings. In particular, considering the diverse legal perspectives on what I view to be fundamental issues expressed by the Judges of the Chamber as evidenced by the Impugned Decision, which comprises also of the Separate Concurring Opinion by Justice Benjamin Mutanga Itoe and my Dissenting Opinion, I consider that it will be in the overall interests of justice and the preservation of the integrity of the proceedings to leave the law on such important issues unsettled and in a state of uncertainty.

10. Furthermore, the underlying issue to this Impugned Decision on the admissibility of evidence is related to crimes of sexual violence, as I previously stated in a related but different Dissenting Opinion related to such crimes:

“Victims of sexual violence have the right to have crimes that are committed against them prosecuted with all due respect to the Rule of Law.”[4]

That, in itself, would constitute exceptional circumstances within the meaning of Rule 73(B) of the Rules. Failure to do so in these circumstances would not be in the interests of justice.

11. I am further of the opinion that the difference of legal opinion expressed by the Justices of the Trial Chamber in the Impugned Decision is, in the present circumstances, on issues of fundamental importance, and as such, constitutes exceptional circumstances and that, should no leave to appeal it be accordingly granted, irreparable prejudice may ensue that could not be cured through the final disposition of the trial.

12. For these specific reasons I, therefore, cannot agree with the findings and disposition of the Majority in this Decision and I would grant thus leave to appeal the Impugned Decision.

[1] Prosecutor against Sesay, Kallon and Gbao, Case No. SCSL-04-15-PT, Decision on Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motions for Joinder, 13 February 2004, para. 10; see also Prosecutor against Brima, Kamara and Kanu, Case No. SCSL-2004-16-PT, Decision on Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motions for Joinder, 13 February 2004, para. 13.
[2] Prosecutor against Sesay, Kallon and Gbao, Case No. SCSL-04-15-PT, Decision on Prosecution Application for Leave to File an Interlocutory Appeal against Decision on Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT, 1 June 2004, para. 21.
[3] Prosecutor against Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision on Request by First Accused for Leave to Appeal Against the Trial Chamber’s Decision on Presentation of Witness Testimony on Moyamba Crime Base, 24 May 2005.
[4] Prosecutor against Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Dissenting Opinion of Judge Pierre Boutet on Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, 5 August 2004, para. 18.