TRIAL CHAMBER I

Public Document

SEPARATE AND CONCURRING WRITTEN REASONS OF HON. JUSTICE BANKOLE THOMPSON ON MAJORITY DECISION ON ORAL OBJECTION TAKEN BY COUNSEL FOR THE THIRD ACCUSED, AUGUSTINE GBAO, TO THE ADMISSIBILTY OF PORTIONS OF THE EVIDENCE OF WITNESS TF1-371

I. Introduction

1. On Friday 21st of July, 2006 Counsel, for the Third Accused, John Cammegh, with whom Counsel for other Accused associated, objected to the admission of the evidence of Witness TF1-371 on the alleged involvement of the Third Accused in unlawful killings in the Kono District.
2. After hearing the Prosecution’s response and the reply of the Defence, the Trial Chamber decided to take the matter on advisement and come up with a Ruling in the course of the week beginning the 24th of July, 2006.
3. On the 24th of July, 2006, the Bench ruled by a 2 - 1 Decision (Hon. Justice Bankole Thompson, Presiding Judge and Hon Justice Pierre Boutet), Hon. Justice Benjamin Mutanga Itoe, dissenting, that the objection was premature and that further probing of the issue was necessary in the course of examination-in-chief.
4. After further probing of the issue in the course of examination-in-chief, Counsel for the Third Accused renewed his objection on essentially the same grounds, and reinforced his earlier submissions. After a response by the Prosecution and a reply by Counsel for the Third Accused, the Bench retired for deliberation. The Bench then ruled by a 2 - 1 Decision (Hon Justice Bankole Thompson, Presiding Judge and Hon. Justice Benjamin Mutanga Itoe) that the evidence objected to is inadmissible and should be excluded and expunged from the records. Hon. Justice Pierre Boutet dissented on the grounds that the evidence is admissible and should not be excluded.
5. The Bench further indicated that Written Reasoned Rulings will be published in due course. It is pursuant to that indication that I here provide separate reasons in support of the Majority Decision.

II. Objection

6. In concise terms, the Defence Objection is that the evidence of Witness TF1-371, that the Third Accused knew of the alleged unlawful killings in the Kono District as alleged, is inadmissible and should be excluded.

III. Defence Submissions

7. Arguing in support of the objection, Mr Cammegh strenuously contended that the fundamental basis of a fair criminal trial is the right of an accused person to test the veracity of the Prosecution’s evidence by way of cross-examination.[1] Counsel further argued that the Third Accused has suffered prejudice in that most of the evidence concerning allegations of unlawful killings allegedly committed in the Kono District has deliberately not been challenged by the Third Accused for the specific reason that no evidence had been 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 them.[2]

8. Arguing further, Counsel stated that several witnesses have already testified before the Court between July 2004 and January 2005 concerning allegations of unlawful killings in the Kono District and that the Defence decided not to cross-examine these witnesses on the basis that the Third Accused was never implicated in their testimonies.[3]

9. Counsel then pointed out that on 8th of May, 2006, the Defence received the unredacted witness statement of Witness TF1-371 and that at page 23811 of the said statement, Witness TF1-371 states that the Third Accused was the chief of the Intelligence Office and therefore he “should have known” about incoming reports from his office on killings committed in the Kono District. Counsel also stated a subsequent statement from the same Witness was disclosed to the Defence on 10th of July, 2006 wherein the Witness states, at page 24032, that the Third Accused received specific reports from the Intelligence Office concerning various incidents of killing of civilians in the Kono District.[4]
10. Furthermore, the Defence submitted that, even though no mala fides was being alleged against the Prosecution, yet in the circumstances there has been extreme unfairness to the Defence in that the Accused has been effectively denied the opportunity to cross-examine various witnesses, either crime base or insider, that testified on the allegations of unlawful killings concerning the Kono District in relation to any personal involvement of the Third Accused in the said allegations.[5]

11. On the issue of available remedies for the alleged violation, Mr Cammegh argued that there were three possible options in the circumstances: extension of time to investigate by way of an adjournment of the proceedings, recalling of all of the witnesses from the Kono crime base who allege unlawful killings, and the exclusion of the evidence in question. Finally, Counsel contended that the doctrine of fundamental fairness has been offended, and that the first and second remedies will occasion undue delay in the proceedings and, that the only reasonable remedy in the circumstances is that of exclusion.[6]

IV. The Prosecution’s Response

12. Responding, the Prosecution opposed the objection and submitted that the evidence is admissible pursuant to the principle of orality and in the interest of justice.[7] It stated that Witness TF1-371 was added to the Witness List only on 6 April 2006, following a Decision of this Court and that thereafter, his original redacted and unredacted witness statements were disclosed to the Defence as soon as possible. The Prosecution, however, stated that similarly, any subsequent statement by this witness was promptly disclosed, and therefore there has been no breach of disclosure obligation on its part.[8]

13. The Prosecution, however, conceded that the subsequent witness statement of Witness TF1-371, as indicated by the Defence, contains more than a simple amplification of what was contained in the Witness’s previous statement concerning the alleged involvement of the Third Accused in the allegations of unlawful killings in the Kono District.[9]
14. In addition, the Prosecution indicated that Witness TF1-371 was the only insider witness in possession of the particular evidence in question,[10] and that as early as January 2005 various other witnesses, in particular protected Witness TF1-071, testified on the role of the Third Accused as the Overall Security Commander and that, as such, he was i) a senior commander reporting directly to the High Command and ii) he was directly responsible for all intelligence information received from the RUF occupied zones from the various Units under his control.[11]
15. The Prosecution, finally, submitted that the Third Accused is therefore criminally responsible for the allegations of unlawful killing in the Kono District in pursuance of the doctrine of joint criminal enterprise and that of superior responsibility. Citing paragraph 32, the Prosecution submitted that the Third Accused is charged in the Amended Consolidated Indictment under these modes of liability in respect of his role as Overall Security Commander. [12]

V. The Defence Reply

16. Reinforcing the main thrust of the objection in reply to the Prosecution’s submissions, the Defence submitted that i) even if a witness already testified on the role and function of the Third Accused within the RUF, it will not be possible even through a broad interpretation of the doctrine of joint and superior criminal responsibility to take a quantum leap of leadership in order to conclude that the Third Accused had any knowledge of certain particular circumstance and had any command or control over Kono District;[13] ii) no direct evidence had been previously presented at trial concerning the Third Accused’s functions and role in Kono District;[14] iii) the Defence exercised a deliberate professional judgment not to cross-examine any crime base or insider witness who testified on allegations of unlawful killings in the Kono District as, in the circumstances, it would have been an irrelevant line of inquiry and a waste of the Court’s time as well as it would have been against the interest of the Third Accused,[15] and, finally iv) Article 17 of the Statute of the Special Court, as well as Rule 26bis of the Rules, dictates that the trials should proceed fairly.[16]

6. Reasons In Support of the Majority Decision

17. I opine that, as a matter of law, the issue of whether an accused person knew or did not have knowledge of the commission of the crimes alleged in an indictment is an essential ingredient of the alleged crimes, and goes to the very core of the ultimate question of guilt or innocence. In the context of the existing Indictment pursuant to which the Accused herein are charged and being tried, knowledge of the commission of the crimes alleged alongside the actual commission is precisely what this tribunal is called upon to decide. It is trite law that ultimately it is the exclusive prerogative of the adjudicating tribunal to determine such an issue.
18. The objection, in my judicial comprehension, raises or involves the question whether it is legally proper for the witness, in examination-in-chief, to be allowed to proffer evidence on the legally complex and delicate question whether the Third Accused knew or did not know of the alleged killings in the Kono District as charged in the Indictment. I characterize the issue as “legally complex and delicate” advisedly for two reasons. The first is, as I have already opined, that it is a matter of inference and one of a significant finding of fact whether the Third Accused knew or lacked knowledge of the alleged killings. The second is that it goes to the core of the mental element of the crime against humanity of murder, to wit, that “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread and systematic attack against a civilian population”.[17] This issue, in my considered judgement, is pre-eminently one within the exclusive domain of the Trial Chamber. It is integrally part of the mental element required for the commission of the crime against humanity of murder, a point which this Trial Chamber underscored in a recent Decision in these terms:

This Chamber takes due cognisance of the fact that Murder as a Crime Against Humanity has consistently been defined as the death of the victim resulting from an act or omission of the accused committed with the intent either to kill or to cause serious bodily harm in the reasonable knowledge that it would likely result in death. It must also be shown that the victims were persons taking no active part in the hostilities.[18]

To infer that an Accused person had knowledge of unlawful killings in the context of an indictment charging him with individual criminal responsibility, joint criminal responsibility, and command responsibility for such alleged unlawful killings amounts to an attribution of guilt to that person, a task falling within the adjudicatory function of a tribunal assigned the exclusive responsibility to try such an Accused person. A witness cannot make such a determination. The question resolves itself into this inquiry: is an ordinary witness entitled to draw an inference on an issue upon which the Tribunal must also draw a conclusion based upon the found facts?

19. Consistent with the foregoing reasoning, I take it for granted that the object of examination-in-chief is to obtain testimony in support of the version of the facts in issue or the facts relevant to the issue (the facta probanda), for which the party calling the witness contends. The testimony must be based on personal knowledge, on what the witness saw or heard or perceived in any other way. It must be testimony as to facts, not as to inferences or conjectures or theories.[19] In effect, a witness may speak only to facts, and not to inferences.
20. This legal dichotomy rests on the fundamental distinction between the role of a court as the trier of fact and law, and the role of a witness in testifying as to what he or she saw or heard in respect of the crimes charged. In this regard, all a witness can legitimately do is to testify as to what he or she saw or heard or otherwise perceived as to the alleged incidents. When a witness goes beyond that, and attempts to opine, infer, or make deductions in respect of the existence of a key ingredient of the offence charged, such would amount to a usurpation of the Tribunal’s function as the trier of fact and law.[20]
21. Hence, it is my considered view that Witness TF1-371, having regard to the Ultimate Issue Rule, cannot legitimately draw any inference on the issue of the Third Accused’s knowledge or lack of knowledge in respect of the alleged Kono District killings.
22. I accordingly sustain the objection and rule that the evidence is inadmissible and should be excluded and expunged from the records.

[1] Transcripts, 21 July 2006, p.7. transcripts, 24 July 2006, p.22.
[2] Transcripts, 21 July 2006, p. 7-8.
[3] Transcripts, 21 July 2006 p. 8.
[4] Transcripts, 21 July 2006, p. 9-10, 12
[5] Transcripts, 21 July 2006, p. 11, 13-14. The Defence also submitted that it is arguable whether in the circumstances there has been any breach of disclosure obligations by the Prosecution. See Id., page 14.
[6] Transcripts, 21 July 2006, p. 15-20; Transcripts, 24 July 2006, p. 23-24, 28
[7] Transcripts, 24 July 2006, p. 26-27.
[8] Transcripts, 21 July 2006, 21-22.
[9] Transcripts, 21 July 2006, p. 21.
[10] Transcripts, 24 July 2006, p. 29, 32.
[11] Transcripts, 21 July 2006, p. 23-24.
[12] Transcripts, 21 July 2006, p. 26-27, 29.
[13] Transcripts, 21 July 2006, p. 30-32; Transcripts, 24 July 2006, p. 21.
[14] Transcripts, 21 July 2006, p. 32; Transcripts, 24 July 2006, p. 21.
[15] Transcripts, 21 July 2006, p. 32-33; Transcripts, 24 July 2006, p. 21-22.
[16] Transcripts, 21 July 2006, p. 34; Transcripts, 24 July 2006, p. 22-23, 28.
[17] See Dixon, Rodney and Karim Khan (eds.) Archbold International Criminal Court, Practice, Procedure and Evidence, London: Sweet and Maxwell, 2003, at page 365.
[18] Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgement of Acquittal, 21 October 2005, para. 72. See also Prosecutor v. Tadic, Appeals Chamber, ICTY Decision 15th of July, 1999, at pages 248 and 257.
[19] See Howard, M.N. et al (eds.) Phipson on Evidence, 15th ed. London: Sweet and Maxwell, 2000 at page 245; See also Byrne, David and J. Heydon (eds.) Cross on Evidence, Third Australian edition, Sydney: Butterworths, 1986 , at page 720.
[20] For the application of the Ultimate Issue Rule in the context of expert testimony, see White, Robert B., The Art of Using Expert Evidence, Ontario: Canada Law Book Inc., 1997 at pages 69-70.