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

  • Good morning. Mr Koumjian, appearances please.

  • Good morning, your Honours. For the Prosecution, Alain Werner, Maja Dimitrova and Nicholas Koumjian.

  • Thank you. Mr Munyard?

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.32 a.m.]

  • Good morning, Madam President, your Honours, counsel opposite. For the Defence, Courtenay Griffiths QC, myself Terry Munyard, Morris Anyah and Ms Haffie Haffner and before we go any further Mr Griffiths has a couple of matters that he wishes to raise.

  • Madam President, your Honours, good morning. It is two matters, Madam President. The first is this: Yesterday, through my own oversight and I take full responsibility for this, I omitted to mark for identification the statement which helpfully the Court manager had marked during the course of the testimony of witness TF1-314 and although I am sure it causes some inconvenience, in particular because Mr Santora is not with us today, I would be applying to have that document marked for identification and exhibited with that witness. Of course with the leave of the --

  • It seems unnecessary to mark it for identification if you are going to seek to tender it as an exhibit.

  • Yes, that may well be right, Madam President.

  • And you said there was more than one matter. Is the other related before I invite a reply?

  • No, the other is not related, your Honour, so we can deal with this.

  • In that case I will deal with that matter first. Mr Koumjian, I appreciate that your colleague, Mr Santora, dealt with this witness. You were present in court. Are you in a position to reply to the application by counsel for the Defence?

  • Certainly I can reply. If I could just enquire, and actually I am curious about this as a general practice, what has become of the document? Is it still here, because it was not --

  • It was helpfully provided to me this morning by the Court Manager.

  • That is the original you have in your hand, Mr Griffiths?

  • This is the original which was marked.

  • Which the Court Manager had maintained. I have no objection.

  • I am grateful for that. Madam President, that now would become exhibit D-70.

  • I usually try and recite how many pages for purposes of record for convenience of the --

  • I think it may be better and more authoritative if you were to have a look at the document yourself.

  • Thank you. This is a five page typed document headed "The Special Court for Sierra Leone". I note that the final page has a notation saying "Signature", but there is no signature. It is as marked by the Court Manager in the presence and following the evidence of the witness TF1-314 and it becomes Defence exhibit D-70.

  • [Exhibit D-70 admitted]

  • Your Honour, may I just look at the document? I have not seen it.

  • Then it should have been given to you before I made that ruling.

  • Madam President, the second matter is this, and I make it merely by way of observation and with all due respect to this Court and it shouldn't be taken in any way as a criticism, but we are concerned that whereas for the bulk of this trial we have had all four judges present in court we are somewhat concerned that in recent times, I am sure for good reason and through no individual fault of the judges, we have been lacking the expertise and experience of all four judges being applied to the proceedings.

    Now we take into account and note that we are dealing with a complex factual situation here and we have noted with respect and admiration the obvious attention paid to the detail of this case by all four judges and indeed the necessary and we think important interaction between you all during the course of the proceedings. We are anxious that that be maintained for the duration of the trial and that I appreciate that there may be other authorities which may make demands upon the time of the judges, but it seems to us that the priority should be these proceedings.

  • Mr Koumjian, this is not - it's an observation as Mr Griffiths correctly points out. Is there anything you wish to add or reply to?

  • No, thank you, your Honour.

  • [Trial Chamber conferred]

  • Mr Griffiths, as you can appreciate we accept the point you are making and, as you correctly say, we are not all here. However, some of these matters are following directions or interaction by the President of the Court and we will take your observations and we will have them conveyed to the President for consideration.

  • I am most grateful, Madam President.

  • Mr Koumjian, you have indicated to us yesterday that you will be dealing with the next witness, TF1-158.

  • That is correct, your Honour, and if I may first deal with the protective measures situation with that witness. That witness is the subject of the now very familiar July 2004 decision and is a Category B witness. As a Category B witness 158 was entitled to a pseudonym for all public proceedings and to screening and also to video link. We have discussed this with the witness and the witness is comfortable with waiving the video link and is prepared to testify with a pseudonym and screen here in court in front of your Honours. So we would be asking the Court to lift for purposes of this proceeding paragraph (h) of the order in the July 2004 decision in Sesay et al.

  • I am just looking at (h) in front of me, Mr Koumjian. It says, "The witness in Category B (children) testify with the use of closed circuit television. The image appearing on the public's monitors being distorted". So am I to take it that that distortion is included in the waiver?

  • Your Honour, I believe paragraph (e) above would still maintain the facial distortion. Am I correct?

  • My understanding is that (e) is only the screen which means that the back curtain is down and the side curtain is open, but let us check that to make sure we know what we are talking about.

  • My understanding is that the face of the witness is not broadcast. The witness does not mind appearing in court in front of your Honours and counsel. It is simply that his face not appear, as I understand it, to the public.

  • Your Honour, the use of an electronic witness screen normally goes hand in hand with image distortion so that the face of the witness is not broadcast.

  • Thank you for that. That is most helpful. I am not sure if Mr Munyard is --

  • You are correct, your Honour. It is me who is dealing with this witness. Clearly at the time in July 2004 the witness may well have been a child witness and therefore covered by the order. I raise the question as I think he is now 21, does that mean that he is still covered, because as I understood it the category, Category B, was meant to cover witnesses who were at the time still children.

    If I am misunderstanding the purport of the judgment on 5 July 2004 then I am perfectly happy to have that pointed out, but my understanding of it was that it was meant to protect those who were children because if you look in the paragraph we were just looking at - actually it is not that. It is paragraph 34 of the judgment, can I read it out. It is quite short:

    "As regards Category B witnesses (child witnesses) the Prosecution seeks the possibility for testimony by way of closed circuit television. Whilst the witness testifies in a back room in the court building this would allow the accused and the Defence as well as the Trial Chamber and the Prosecution to see the witness on a television screen and observe his or her demeanour while the image on the screen for the public at that time would be distorted. As stated by psychologist Anne Michaels, 'Vulnerable witnesses such as children have a high risk of retraumatisation and the possibility of stigmatisation and rejection is real and high'."

    They then went on to say they agreed with a decision of the United States Supreme Court as to the use of closed circuit television.

    I raise it because clearly we all understand and accept that vulnerable witnesses such as children do fall into a special category, but the witness is no longer a child and clearly hasn't been a child for some years and that is why I raise the question does decision still apply to him?

  • [Trial Chamber conferred]

  • May I take it by implication, Mr Munyard, that you are objecting to the continuation of the protective measures that are in situ for this witness?

  • Madam President, I think I must object for the reasons that I have given in order that we can clarify the true ambit of this particular decision, because if I am right then clearly the decision doesn't apply to a witness who is no longer a child witness and so we obviously have to all be clear as to the real meaning of child witnesses within the terms of the decision that we are looking at.

    So I would submit that as a witness who is now 21 is due to give evidence, he or she, depending on who it is, no longer enjoys the benefit of these protective measures for the reasons that they are no longer children.

  • Mr Koumjian, you have heard the objection which appears, I suggest, to raise a point of law as well as an objection, so your reply, please.

  • Thank you, your Honours. It take it as a motion to rescind based on changes circumstances. Your Honours, I do not believe there is any such limitation in the order by reading the plain language of the order. It does not state that witnesses up until their 18th birthday or any particular date enjoy these measures. It states that these witnesses listed in the annex - and this witness is one of those - enjoy the measures and we don't think in this circumstance then that there is a need to re-litigate it. A motion to rescind in our opinion at this time moments before the witness is to take the stand is not timely and we believe that this decision has been interpreted previously to cover witnesses even after they reach majority and I believe this particular witness has testified previously at the age of 18 enjoying these measures. Thank you.

  • When you say it has been litigated and interpreted, can you refer me to or refer myself and my learned colleagues to the precedent you are referring to?

  • Well, I was thinking of this witness's own testimony before this Trial Chamber previously three years ago.

  • This issue wasn't raised then.

  • [Trial Chamber conferred]

  • We are of the view that this application involves several legal issues involving interpretation of both orders and the wording of those orders and of the rules and we bear in mind the recent decision of the Appeal Chamber given on 17 October 2008 in which it said, inter alia, that a Trial Chamber must provide and I quote: "Provide a reasoned opinion that among other things indicates its view on all of those relevant factors that a reasonable Trial Chamber would have been expected to take into account before coming to a decision", and, in the present circumstances, we are of the view that there is not enough argument before us, nor time, to give a reasoned opinion, and we therefore invite the parties to put this in proper writing by way of motion and we will rule upon it. In the circumstances, that witness cannot proceed today.

  • Madam President, can I just add one thing about the timing. I understand why my learned friend says that my application is untimely. You will appreciate that witnesses have been coming through at quite a rate over the last few weeks, almost all of whom I think have sought recision of all or some of their protective measures and so it wasn't until this morning that we actually knew, on this side of the Court, which if any protective measures this witness still sought to have applied to him. I am making that merely as an observation so the Court understands why we haven't put in an application earlier.

  • I am glad you did, Mr Munyard, because I was going to make the observation in due course, but that I will defer.

  • Even then, Mr Munyard, even that allegation that the Defence was untimely is something to me that should be properly litigated as well and we are talking about a written motion and response.

  • Certainly.

  • Your Honour, the Prosecution is looking for a practical solution to this. This will prejudice us in some ways as far as timing because we have anticipated this witness will take a good part of this day, but much more importantly it will severely inconvenience the witness because the witness has been brought here to testify. The amount of time required for motion, reply, response, reply and decision could be quite lengthy as far as a person who is brought here and kept in conditions that frankly I don't think any of us would want to be in for a long period of time.

    I am not sure which of these measures the Defence is objecting to. Is the Defence saying the witness has waived the video link, the witness has only asked for screening and pseudonym? If I can just get the Defence position maybe possibly, maybe there is a solution to this, but because --

  • Sorry to interrupt, Mr Koumjian, but perhaps I am wrong, but I thought the Defence position was clear that they were saying that the present protective measures were made because the witness at the time was a child and that position does not pertain any more and therefore there shouldn't be any protective measures. Have I misstated that, Mr Munyard?

  • Your Honour, Justice Lussick is absolutely right. Our position in relation to this witness effectively is the same as what have been called Category 1 witnesses. The decision for different reasons no longer applies or doesn't - sorry, doesn't apply to this witness.

  • I understand. Well, look, this is subject to what the Presiding Judge might think, but I am just wondering if we went off the Bench for five minutes or so if the matter could be resolved then, well and good. If the matter couldn't be resolved then I partly support what the Presiding Judge has already said.

    I can just add one more thing regarding that decision of the Appeals Chamber, that that also was a situation where this Trial Chamber had to make an urgent decision because there was a witness in the wings waiting to come on to give evidence, but notwithstanding that it is made perfectly clear by the Appeals Chamber that this Trial Chamber had a duty to provide a reasoned opinion that, amongst other things, indicates its view on all those relevant factors, that a reasonable Trial Chamber would have been expected to take into account before coming to a decision. The Presiding Judge has already made that clear to the Court.

    So it seems to me that if we take a break and the matter can't be resolved in that break, we will have to make appropriate orders that if we are expected to deliver a reasoned decision then we would need some properly researched pleadings, motion and response. So, is it worth having a five minute break, Mr Koumjian?

  • Certainly. I think there is nothing lost in a five or ten minute break to try to reach a reasonable solution. I would say I absolutely understand what your Honour is saying regarding decisions on the fly. This witness has been listed since the pre-trial brief and so - and this decision has existed since that time. In our opinion the problem is a motion to rescind at the very last minute when the witness has been on the list for years.

  • We will take a break to allow both the parties to clarify their respective positions and allow counsel for the Prosecution to, or through the appropriate authorities, to see the witness's position.

  • We will return as soon as that matter is made. I can indicate that if this proceeds to a motion I have in mind, subject to discussion with my colleagues, to direct expedited filings. However, I give that as an indication only. Please adjourn the Court temporarily to allow this matter to be discussed.

  • [Break taken at 9.58 a.m.]

  • [Upon resuming at 10.14 a.m.]

  • Your Honour, I have discussed this matter with Mr Munyard and with the witness. There is an agreement that the witness would testify with a pseudonym. I have explained to the witness we would take his name in a private session and that his name or the name of any family members would not be mentioned in the court in open session. He is on the basis of that prepared to testify; he is anxious to return home.

  • Thank you for that indication and I gather your parties are ad idem with this?

  • Certainly, Madam President. We took instructions first of all from Mr Taylor. He was anxious that the witness be dealt with today if at all possible and the compromise solution that we have come up with I think meets the concerns of both sides of the court.

    Can I add one further thing: This situation might arise in future and it is our view that the scope and ambit of the decision of 5 July 2004, as regards child witnesses who are no longer children, does need to be clarified and we would propose putting in a motion in a timely fashion and it doesn't - I don't think at the moment it would need to be expedited, but putting in a motion to clarify the position of witnesses who fall into that category so that everybody has an opportunity to fully consider the question and then the Court to rule on it should it arise in relation to any future witness.

  • Then you will be doing that of your own motion, Mr Munyard?

  • We will, your Honour, yes.

  • Obviously it is not incumbent upon me to comment on such a course of action. I will merely observe that it has concerned me for some time the interpretation of the word "children".

  • And bearing in mind such things as our own rules and international conventions it may well be appropriate to consider this.

  • I did indicate that to Mr Koumjian when I spoke to him in the short break and I should have also thanked the Court for the time that it has given us to resolve this in a way that is satisfactory to both sides and I do so now.

  • Thank you. Mr Koumjian?

  • I just say we would welcome any timely motions and also point out that the Prosecution, if measures are rescinded, we need to speak to the witness about the current situation and there may be a basis for measures on another basis to be justified for other reasons. So all of this could be quite lengthy, but that is just a comment that we welcome a timely motion.

  • Mr Koumjian, I wouldn't dream of suggesting that any variation in protective measures would be dealt with without consultation with the person concerned and we will deal with the motion if and when it is filed in the normal manner.

    I note by consent, therefore, that certain protective measures given to witness TF1-518 [sic] have been rescinded and that the witness will give his evidence - and I gather it is a male witness - in open session with as appropriate applications for certain evidence to be adduced in private with the use of a pseudonym. The applications will be dealt with when and as they arise. Please call the witness.

    Are the Krio interpreters in position?