TRIAL CHAMBER I

Public Document

SEPARATE CONCURRING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE ON THE ORAL RULING ON THE ADMISSIBILITY OF ALLEGED CONFESSIONAL STATEMENTS OBTAINED BY INVESTIGATORS OF THE OFFICE OF THE PROSECUTOR FROM THE FIRST ACCUSED, ISSA HASSAN SESAY

SEIZED of an Oral Application by the Prosecution on the 5th of June 2007 to admit alleged confessional statements obtained by the Investigators of the Office of the Prosecutor from the First Accused, Issa Hassa Sesay;

MINDFUL of the oral submissions advanced by Learned Lead Counsel for the Prosecution Mr. Peter Harrison on the one hand, and also by Mr. Wayne Jordash, Learned Lead Counsel for the Defence Team of the First Accused on the other;

MINDFUL of the provisions of Rule 92 as read conjunctively with Rules 43, 63 and 95 of the Rules of Procedure and Evidence;

MINDFUL of the provisions of Rule 54 of the Rules of Procedure and Evidence;

NOW THEREFORE, I HON. JUSTICE BENJAMIN MUTANGA ITOE DO HEREBY ISSUE THE FOLLOWING SEPARATE CONCURRING OPINION

1. I would like to say here that I concur entirely with the Decision that has been read by the Honourable Presiding Judge and that in so concurring, I will only add an additional italicised element in Paragraph 4 of that Decision.

2. I would accordingly therefore, only be reading Paragraph 4 of the Unanimous Decision of the Chamber which should now read as follows:

This Chamber, taking all the facts and circumstances as gathered from the totality of the evidence into consideration, and the applicable law and jurisprudence in situations of this nature, finds that the alleged statements obtained from the First Accused during the interviews by the Prosecution, “as well as his alleged waiver of his rights to Counsel”, were not voluntary in that they were obtained by fear of prejudice and hope of advantage held out by persons in authority, the Prosecution having failed to discharge the burden of proving beyond reasonable doubt, under the provisions of Rule 92 as read conjunctively with Rules 43 and 63 of the Rules of Procedure and Evidence.

3. The addition here is that the Separate Concurring Opinion includes, the phrase: “as well as his alleged waiver of his rights to Counsel”.

4. I accordingly adopt in their entirety, including my addition to Paragraph 4, Paragraphs 1, 2, 3, 4 and 5 of the Unanimous Ruling of the Chamber.

5. I would like at this juncture to acknowledge and highly commend the professionalism and the thoroughness of both Mr Wayne Jordash, Learned Lead Counsel for the First Accused’s Defence Team and Mr Peter Harrison, Learned Lead Counsel for the Prosecution and their respective Teams, in the presentation of their evidence and their factual and legal submissions on an issue of such complexity, whose results, I have no doubt, will go a very long way to registering yet another milestone in the progress that has so far been made by Domestic and International Criminal Law jurisdictions on cases relating to Waivers by Accused Persons of their rights to Counsel, and the Rules and conduct that govern, or should govern, the concept of voluntariness in the process of adjudicating on issues relating to the admissibility of alleged confessional statements.

6. A Separate Reasoned Written Concurring Opinion will be published in due course.