The transcripts of the trial of Charles Taylor, former President of Liberia. More…

  • [Open session]

  • [In the absence of the accused]

  • [Upon commencing at 11.35 a.m.]

  • Good morning. We have a few preliminary matters before we reach the scheduled agenda item, and I will, before alluding to those, take appearances. Ms Hollis?

  • Good morning, Madam President, your Honours, opposing counsel. This morning for the Prosecution, Brenda J Hollis, Leigh Lawrie, and we are joined by our case manager, Maja Dimitrova.

  • Good morning, Madam President, your Honours, counsel opposite. For the Defence this morning, myself, Terry Munyard, also present is Courtenay Griffiths QC, and Claire Carlton-Hanciles, the Principal Defender. Madam President, Mr Taylor is not here, he's waived his right to appear. There is, on this occasion, a proper formal document and it was in the hands of your senior legal officer.

  • Thank you, Mr Munyard, we have indeed seen that document and we note the voluntary waiver, and accordingly, in light of the provisions of rule 60, the Court will proceed in the absence of the accused.

    As I indicated there are two preliminary matters. One is the direction to Mr Griffiths to appear this morning. And he has been directed to attend to apologise for his behaviour on 8 February. And the second is the Defence request for ancillary relief. I will deal with the first matter.

  • Madam President, again I rise. We are cognizant of the court's order of Wednesday. Looking at that order dated Wednesday, 9 February 2011, it's timed as having been received by Court Management at 1 minute before 4 o'clock on Wednesday afternoon. We received it about 40 minutes later. It is the view of the Defence that this is so serious a matter that it is something on which we feel that Mr Griffiths needs representation before the Court. May I simply and briefly remind you of what you said in that order?

    You quoted the transcript of Tuesday's hearing where you said this, Madam President:

    "Mr Griffiths, please sit down and remain as directed by the Court. If you continue to remain on your feet and present - prevent counsel for the Prosecution speaking by doing so, then I will be obliged to consider that your conduct is verging on a contempt."

    You then go on to say, in the order of Wednesday, you go on to say that by a majority, justice Sebutinde dissenting, you direct Mr Griffiths to attend today, which of course he has done, and you warn him that unless he apologises for his behaviour on 8 February, the Trial Chamber may impose sanctions pursuant to rule 46 of the Rules of Procedure and Evidence and looking at rule 46 of the latest revision of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, 46(A), and that's the only one I'm intending to quote from, 46(A) reads:

    "A Chamber may, after a warning, impose sanctions against or refuse audience to a counsel if, in its opinion, his conduct remains offensive or abusive, obstructs the proceedings or is otherwise contrary to the interests of justice."

    Now, in our submission, by your words, Madam President, on Tuesday where you say, "I will obliged to consider that your conduct is verging on a contempt," and by ordering Mr Griffiths to appear today, and saying, unless he apologises, the Court may impose sanctions pursuant to the rule I've just cited, there is clearly been a prima facie view taken by the majority, I'll put it, that's how I read it in any event, a prima facie view taken by the majority of the Trial Chamber that Mr Griffiths either is in contempt or is liable to be sanctioned or refused right of audience under rule 46.

    Those, you don't need me to say, are extremely serious matters. They are punitive in nature, they must depend upon a judicial hearing and an understanding of both sides of the argument, and there must, in our submission, be proper and careful consideration given to the argument on the merits of any possible contempt or breach of the code of conduct.

    In those circumstances, we have endeavoured in the very short notice that we've had, just over a day, to obtain representation for Mr Griffiths by properly experienced counsel, someone who has experience not just in domestic jurisdictions, but also in the jurisdictions of these tribunals, by which I mean the ad hoc or the one permanent international criminal justice tribunals so that he can be properly, effectively and carefully represented.

    And we would invite the Court, because we haven't been able to get such a suitably qualified lawyer in this very brief period of time, between late Wednesday afternoon and this morning, we would invite the Court to adjourn this matter for two weeks, for it to be heard, and in that time we anticipate we will be able to get suitably qualified counsel to represent Mr Griffiths.

    Can I say one final thing on this? Lest anybody should think that Mr Griffiths should be represented by a member of the Defence team, we don't think that would be at all proper for two obvious and profound reasons. One is that there is a general principle of legal practice that you do not represent somebody that you are a member of the same team as; it would be akin to a lawyer attempting to represent a member of their family. That is not, in our practice, ever considered appropriate. And we certainly don't think it would be right for us to appear for Mr Griffiths in the circumstances. That's a general principle of practice.

    But there is another reason here, and that is that the Court will have undoubtedly noticed that on Tuesday, Mr Griffiths was the only Defence counsel present. It was our collective view, as a team, that we should not attend the proceedings and when I say should not attend the proceedings, I don't mean by that that we were withdrawing our services as counsel, nor indeed was Mr Griffiths, but simply not being present at Tuesday's proceedings, and of course those of Wednesday. So for those two reasons, we don't think it at all appropriate for any of us to seek to represent him and we do invite the Court to allow us proper time and we hope that a two-week adjournment would not be an unreasonable adjournment to obtain the services of somebody suitably experienced and we think we are fairly confident that we can do that in two weeks' time.

  • Allow me to confer, Mr Munyard.

  • [Trial Chamber confers]

  • Ms Hollis, this is strictly a matter between the Presiding Judge and Mr Griffiths as represented by Mr Munyard, but if there is anything that would be of assistance to the Court that you wish to say, I will take it into account.

  • Thank you, Madam President.

    What we would suggest, your Honours, is a careful review of rule 46, your order, and rule 77. And your order makes no mention of rule 77, which is contempt. Your order refers to rule 46. Counsel referred you only to one provision of rule 46 but if you look at the entire rule, you will see there is nothing in the rule that allows a hearing on the matter. There is nothing in the rule that allows representation on the matter. The only thing in the rule that deals with the ability of the counsel to take any action, assuming sanctions were imposed, is rule 46(H) which indicates that decisions under sub-rules (A) to (C) may be appealed with leave from the Chamber. So the Defence are conflating the protections of rule 77 with the plain language of rule 46, which is a key and critical rule to allow your Honours to maintain control over the proceedings and control over the conduct of counsel. And we suggest that your Honours have every right to ask for an apology from this counsel for his conduct, and then, depending upon what action might follow, should no apology be forthcoming, perhaps the provisions of rule 46(H) would apply. But no right to a hearing, no right to representation, and we suggest no right to a delay.

    Thank you, Madam President.

  • Madam President, would you allow me one response on the law, not on the facts, of course? The fact that the rule cited in your order, rule 46, does not contain provisions for a hearing or representation, does not prevent the Court, within its inherent powers to regulate its own proceedings, allowing such course of action to follow. And secondly, although rule 77 is not mentioned in the order, in your order you have quoted your own words, "that I consider that your conduct is verging on a contempt," which brings in at the very least the fact that the Court was considering its own rules relating to contempt. I accept that there is nothing in the order about rule 77 but the implication is there. Thank you.

  • Mr Munyard, just to clarify the position, you may be aware that some time ago Mr Griffiths was in a similar pickle, if you like, and the court asked for an apology which it got. But on this occasion, are you saying that Mr Griffiths has no intention of apologising and that's why you're bringing in outside counsel?

  • Your Honour, on this occasion, I would submit that the facts and the circumstances are wholly different. You may recall that I came into court on the last occasion, I didn't speak but I came into court with Mr Griffiths on the last occasion. Like last Tuesday I wasn't present during that part of the hearing when the behaviour complained of took place but I familiarised myself with it. On the last occasion, I believe your Honour is referring to August the 12th, 2010, on that occasion, I familiarised myself with what had gone on and just as I have with what went on this Tuesday and in my submission, the situation is very different, and, indeed, does require full consideration on its merits. I'm not saying at this stage one way or another what Mr Griffiths's ultimate position will be but it does require full and careful consideration on its merits.

  • Well, I'm still not 100 per cent sure of where this is going, Mr Munyard. The Court has asked for an apology, instead of getting one, you're saying that overseas counsel has to be in to argue Mr Griffiths's case.

  • With respect, your Honour, not overseas, counsel with some experience.

  • Can I say outside counsel must be brought in.

  • Can I understand from that, then, that no apology will be forthcoming; is that correct?

  • At this stage, I'm saying that we believe that there are merits in arguing this matter before the Court and making submissions to the Court as to the conduct complained of on Tuesday. And until the merits of those arguments can be properly ventilated, we are not in a position to resolve the matter one way or the other. Your Honour is - your Honour Justice Lussick, is, if I may say so, pushing me to give an answer one way or the other when in fact I'm saying we've not yet reached that stage. And I'm inviting the Court to adjourn the matter so that the merits can be properly aired before the entire Bench.

  • I would like to say something on this issue. As both parties know clearly, I am not party to the directive summoning counsel. I did not state my reasons, but one of the reasons that gave me the mind, if you like, not to bring this matter up at this stage was precisely what has happened now, that the disciplinary proceeding is now taking over or taking us away from the trial. My own view was that the disciplinary proceeding of counsel, Mr Griffiths, should be subordinated to the main proceedings of the trial. Why do I say this? Because the two are separate. And for me, the delay of the trial should not emanate from an ancillary proceeding and I still see it in this way: That we are sitting at a crucial stage of the proceedings, towards the closure, where there is an important application for leave to appeal. It is a very, very crucial application that could fundamentally affect this trial and the work that we've done in three and a half years and now we are veering off into a side proceeding that deals with counsel's conduct. I think that this is sad.

    You, on the Defence side, are asking for a stay. I'm not sure if you're asking for a stay of the trial or whether you're asking for a stay of the disciplinary proceedings. My view is, of course, you're entitled to ask whatever you want to ask for the disciplinary proceedings, but in your view, is this fair to delay the main proceedings of the trial? I want to hear from both sides because in my view, the two can continue parallel. This trial can continue, we can continue to adjudicate, and make decisions that take the trial forward without holding it back, and at the same time you can have your disciplinary proceedings and due process on the side. I would like to hear what the parties think, starting with you, Mr Munyard.

  • Certainly, your Honour. Madam President, the position of the Defence is entirely consonant with that that's just been enunciated by Justice Sebutinde. We also wish to deal with these disciplinary proceedings in a completely separate way and I'm asking for a two-week adjournment of them so they can be dealt with, as it were completely collateral, to the rest of the trial proceedings. And I hope that answers Justice Sebutinde's question. We are not asking for a stay of these proceedings, we are asking for an adjournment of them. I have not, on behalf of the Defence this morning, addressed at all the second issue on the agenda for today.

  • We will come to that in due course, Mr Munyard. I should say that in my view, and I made it clear in the directive, that Mr Griffiths, on the day, was refused permission to withdraw and he was subsequently directed to sit down and he left in defiance of those two directions or orders. However, I do see merit in the fact that he has a right to be heard and a right to have his views taken into account. I agree there is no clear procedural mechanism laid down in the rule. However, there is an overriding right in any person or counsel to be heard fully in a matter that may lead to a disciplinary or may not - I am not making any conclusions - he was requested to give a apology and similarly, as you have alluded to it would have been dealt with as in August, you have given me the date. However, I see merit in your application and I will defer this matter for two weeks. I will now - sorry.

  • We are very grateful for that, Madam President.

  • Now, that means I have to set a date. Today is Friday, the 11th. Two weeks is a period, I presume calendar weeks, of 14 days. What date do you have in mind?

  • That would be the 25th, if I've got my sums correct.

  • I have been helpfully reminded by our senior legal officer that there are Special Tribunal for Lebanon hearings possibly scheduled. I will therefore provisionally set it for the 25th. I will seek assistance of our Registry and staff to ensure that that date is available, and if it is not, the parties will be informed accordingly.

  • This matter is therefore - I have not lost sight of the fact, Mr Munyard, that it is imperative to have this dealt with expeditiously as it involves a right of appearance. I will now move to the second item on the agenda, which is the application by counsel for the Prosecution - for the Defence, and I quote, "A request for ancillary relief in conjunction with the Defence motion seek leave to appeal."

    We note, my learned colleagues and I, that the Defence at paragraph 5 of that document requests the Trial Chamber to stay the proceedings pending resolution of the motion for certification, and further on, in the same paragraph, refers to "and/or related decisions by the Appeals Chamber."

    There is some ambiguity and I would ask you first to clarify what exactly you are seeking before I invite a reply by the Prosecution.

  • Very well, thank you, Madam President. What we are seeking by our motion seeking ancillary relief in the form of a stay is first and foremost an order from this Court that until such time as either you refuse leave or, if you grant leave, the Appeals Chamber decides - reaches its decision and indeed if it reaches a decision in our favour, any timetable it then sets down, that we are asking the Court not to proceed to close the case because, as your Honours will be aware, rule 87(A) provides, "After presentation of closing arguments, the Presiding Judge shall declare the hearing closed."

    And so if this Court at this stage declared the hearing closed, then we would be shut out, as it were, from attempting to pursue effectively an appeal to the Appeals Chamber. We are simply asking the Court to put on hold any closing of the case until such time as either the leave to appeal has been disposed of or the appeal itself has been disposed of.

  • Let me rephrase and clarify, please. It's close of the case, any closing of the case be deferred until the leave is disposed of. Does that mean, if the leave is not granted, then there will be closure, or in the alternative, if it is granted, until the Appeal Chamber rules, is that what you're saying? Because I'm still what confused.

  • Well, what I'm asking the Court to do is not to close the case until all outstanding matters in relation to an appeal against the majority decision not to certify the final brief of the Defence has been resolved. Madam President, does that make it clear?

  • It makes it clear to me. I'll just -

  • I'm still not clear. I have a little confusion here. Are you saying that you will await the decision on the motion for leave to appeal, or are you asking that if that motion is granted, you're asking the case not to be closed until the substantive appeal has been dealt with by the Appeals Chamber?

  • Yes.

  • I see. Thank you, Mr Munyard.

  • Put very simply we want nothing done that will close the case until the final decisions have been made by either the Trial Chamber or the Appeal Chamber on that particular issue, the final brief.

  • Before I invite a reply by the Prosecution, because they have had no opportunity to comment on this, I note that you make the submission on one of the premises is that if it's closed, it will effectively close the hearing and you will be, I quote, "Shut out effectively." Are you saying that if, and I again stress the "if" there was leave to appeal and the Appeal Chamber directed the admission of the document, that either this Trial Chamber or the Appeal Chamber could not reopen the case? Because the wording is a procedural matter, Mr Munyard, and any court has an inherent jurisdiction to review a procedural matter in the light of - after events.

  • Yes, Madam President, I accept that. What we are doing is asking you not to put yourselves in a position at this stage where you have to reconsider and possibly reopen proceedings. We are asking for a purely procedural approach to this, which we think is the most practical approach, which is not to close any doors at the moment, so that if you did close them and then the Appeals Chamber so ruled, you'd have to open them again. We are simply asking you not to take any further steps in closing the case until this matter of the final brief has been resolved.

  • As an ancillary question on this issue, you are - have been directed to file your reply by Monday at 1600, you have seen the response, it's already been filed.

  • Yes.

  • Do you intend to file a reply?

  • Well, in the light of the fact that in their submissions, the Prosecution in their response yesterday on the 10th of February, say that they take no position as to whether or not we have met the rule 73(B) test, irreparable damage, et cetera, we also note that the Prosecution, in their conclusion, say that they think the matter may benefit from appellate resolution at this time, and in those circumstances, Madam President, although I haven't reached a final decision on this this morning, I think it's probably unlikely that we would be putting in any reply to the Prosecution response. I'm sure I could let you have an answer to that later today, if you needed it, but the order for expedited filing deals with - gives us only one more working day in any event, so I can't give you a definite answer, but I think it's unlikely.

  • [Trial Chamber confers]

  • Ms Hollis, the matter before the Court now is the written request by the Defence for ancillary relief in conjunction with the Defence motion, et cetera, filed on the 9th. I would invite your reply to that, and you've also heard counsel remark on the position concerning a reply to the appeal leave application.

  • Thank you, Madam President. The Prosecution views this Defence request as really dealing with two different issues. The first issue is, very clearly stated, a request for a stay of proceedings until there is a decision on the outstanding motion, either through your Honours determining you will not grant appeal or through final resolution by the Appeals Chamber. But secondly, also what is either a request or an assertion that the decision relating to the filing of the final written brief by the Defence also preserves some right for them to then make oral argument.

    As to the first part of the request, based on the outstanding motion, the Prosecution is of the view that your Honours may well determine it is appropriate for the smooth functioning of the proceedings to postpone closing the hearing until the motion is decided, either by your Honours or on appeal. However, that is a decision for your Honours to make within your inherent discretion to manage trial proceedings.

    And we suggest there is no doubt that the Trial Chamber has inherent discretion to determine matters relating to the management of the trial proceedings. And so it would be for your Honours to exercise your sound discretion and determine if you would, indeed, grant the first part of this request for ancillary relief. And there are multiple cases that speak to your Honours' inherent discretion in this matter. The Prlic decision on 13 November 2006, at paragraph 14, an ICTY decision, speaks to that. Also an ICTY decision, the Seselj decision on 12 February 2008, speaks to the inherent discretion of your Honours in managing your trial proceedings.

    However, we would suggest to you that should you determine that the close of the hearing will await a final decision on this pending motion, either through your Honours or on appeal, that the delay should only be for purposes of that motion being determined. It should not be allowed that the Defence would use such a postponement of the close to begin filing more motions on different issues. We would not be in support of that and we would suggest it would be improper and we ask that you not allow that.

    As to the second part of the request, which relates to this request or assertion that, somehow, there is a remaining right of oral argument in this case, we would suggest that that is an unfounded request or assertion and that there should be no allowance of a final closing argument by the Defence, other than should they elect today to give a scheduled rebuttal to the Prosecution final oral submissions.

    We suggest to your Honours that the motion conflates the issue relating to its untimely filing of a final brief with the right to an accused to file or present a closing argument. These two opportunities for the accused are independent of each other, and the making of final oral submissions is in no way reliant on filing a final trial brief. Nothing has precluded this accused, through his counsel, from making oral submissions to your Honours on the dates scheduled for such submissions. As to the 9th of February, it is very clear that the failure to make oral submissions on that date were the wilful, knowing, conscious choices of the accused as relayed to you through his Defence counsel.

    There is no fair trial right that is at issue in this regard. We are facing this issue because this accused and his counsel refused to accept binding orders of the Court and, instead, attempted to assert their control over the proceedings, to impose their scheduling dates, to impose their conditions on the proceedings. That is not the reality of the way that criminal proceedings do or should function. The reality is the accused has wilfully and knowingly waived his opportunity to make final oral submissions to the chamber.

    And if we look at some of the facts, this willing and knowing waiver becomes very clear. If we recall, on 3 February, at 1659 hours, was when the Defence filed its final brief, in excess of 800 pages. It is the understanding of the Prosecution that on Friday, the 4th of February, 2011, after it had processed this lengthy filing, Court Management provided the final brief to the Trial Chamber at approximately 1455 hours. The following duty day, Monday, 7 February, at approximately 1538 hours, this Trial Chamber issued its decision as to whether it would accept the final trial brief.

    Thus, contrary to lead Defence counsel's dramatic misrepresentations it was the accused, through his Defence counsel, who filed his final trial brief at the 11th hour and indeed in reality, your Honours gave your decision at 11.01.

    On 8 February, the day before the Defence was scheduled to present oral argument, if the accused through his counsel elected to do so, lead Defence counsel and the accused appeared in court. And on that date, Mr Griffiths made it clear to the Court that based on written instruction from the accused, he would not take part in the oral proceedings. Lead counsel stated it was the intention of both himself and Mr Taylor, in fact, to leave the Court.

    Now, Mr Taylor did - or Mr Griffiths did leave the Court after an exchange with the Presiding Judge. But after he left the Court he spoke to the press and, in speaking to the press, he told them, as we understand it, we have decided not to participate in these closing arguments. Now, he went on to say because, "As far as we are concerned, it is a complete farce." But the point here is, he said, "We have decided not to participate in these closing arguments." Based on these comments, both inside and outside the courtroom, it is clear that the Defence, on instruction from the accused, had made the decision not to present closing argument as scheduled by this Trial Chamber.

  • Ms Hollis, sorry to interrupt, but do you not think that either you are relitigating issues have already been settled by the Chamber, or alternatively, issues that should be canvassed before the Appeals Chamber? Because I think what we are dealing with now is the impending or, yes, the pending leave to appeal decision and whether or not the order to close should come at the end, with a determination of that decision, or alternatively with a determination of the Appeals Chamber decision if we decide to send it upstairs to appeal. That is all we are dealing with today. We are not dealing with the merits of the would-be appeal because that should be argued before the Appeals Chamber.

  • Thank you, your Honour.

  • I think, listening to you for the last five minutes, everything that you're saying has nothing to do with the issue that we are dealing with now.

  • Madam Justice, it has everything to do with the motion that is before you, which the Prosecution was not given the opportunity to respond to in writing, but was requested to respond to here orally. And a part of that motion indicates that they want a stay in order to preserve their right to make oral submissions. We have the right, I would suggest, to respond to that part of their motion. And all of what I have been saying is relevant to that part of the motion because it gives evidence of waiver of any opportunity to make oral argument. It is for that reason that the Prosecution is dealing with these matters, not to relitigate any other issue, but pertaining to waiver in respect to their either request or assertion that they are able to preserve their right to an oral argument. It is for that reason that the Prosecution is making these comments, Madam Justice, not for any other reason.

    The Defence counsel's statement that they had decided not to participate in the closing arguments was borne out on 9 February when they chose not to come to court to make closing argument on the date that had been scheduled for such argument by the Trial Chamber.

    Now, today, perhaps, they will avail themselves of the opportunity to respond to the Prosecution oral argument. We do not know what that decision will be. But as to their oral argument scheduled for 9 February we suggest they have no right to preserve because there has been a wilful, knowing and conscious waiver. And it is a wilful, knowing and conscious waiver by an accused who is an articulate, accomplished, former Head of State. It is not a waiver of a misguided, uneducated person who is perhaps being misled by counsel. This is a knowing, wilful waiver by an accused who has the ability to make such a waiver, and it should be deemed as such.

    The apparent position that oral argument must be preserved because there is some type of conditions that must be met before they orally argue, we would suggest, is not a basis for granting such a preservation of a waived right. Because counsel have no right to impose conditions on a Trial Chamber. Indeed, it is the orders of the Trial Chamber that prevail.

    So, your Honours, in relation to this second portion of this motion, what we suggest to you is that there has been a willing and knowing waiver, and your Honours should not allow the accused to now come forward at a later date with the benefit of a much-longer time and reflection to make an oral argument that he has so knowingly and wilfully waived.

    Those are the positions that we take on the Defence motion, and if I may be given one minute, simply to provide information that may be of assistance to the Court in relation to Justice Sebutinde's question relating to the effective characterisation of the conflict on Article 3 offences. And I would simply, for Your Honours' assistance and perhaps benefit, indicate that you may consider the Special Court Appeals Chamber decision in Prosecutor v Fofanah of assistance. That is a filing, a decision, dated 25 May 2004, and, in particular, paragraphs 18 through 27, also discuss the question that Justice Sebutinde had raised.

    The Prosecution has no further comments unless there are questions.

  • I have no questions. Allow me to confer.

  • [Trial Chamber confers ]

  • The Trial Chamber has heard the respective submissions of Defence counsel and the responses by Prosecution counsel in relation to this preliminary application for ancillary relief.

    I am instructed and authorised by my learned colleagues to inform the parties that, by a majority, Justice Lussick dissenting, the Trial Chamber will grant leave to appeal the decision, reasons for that decision will be put in writing and published today.

    I will also direct, in the light of that decision, that the Defence expeditiously as possible file their leave to appeal, if they so decide - excuse me, their appeal, I correct myself, I'm grateful for that, their appeal as expeditiously as possible, and that if they so decide to pursue it.

    In the light of the submissions, the Trial Chamber will stand over the proceedings until the Appeal Chamber have delivered their verdict.

    Accordingly, this hearing is adjourned sine die.

  • Madam President, before the Court leaves, can I assure you that we will do everything in our power to be as expeditious as possible. We to do not want the trial lasting a day longer than it needs to. And hollow though those words may sound in the light of events over the past three years, they are nevertheless genuine. And I'm grateful for your decision.

  • Thank you.

  • [Whereupon the proceedings adjourned sine die at 12.25 p.m.]