You mean the one of disclosure officer?
MR. KHAN: Indeed, Your Honour.
Your Honour, the same principle applies for Rule 68, that the Prosecution have to show that they have turned their mind, in my submission as much as for good practice as anything else, that they have disclosed what is exculpatory evidence. That hasn't been done. In my submission, it ought to be done. And I would ask that Your Honour gives consideration to making a ruling on that point.
Your Honour, it's never been the Defence position at any stage, neither today, nor at the very useful and constructive hearing before the Deputy-Registrar in Freetown, that the Prosecution are obligated to detail paragraph by paragraph within a statement what is Rule 68, what is Rule 66. That would be absurd, that would be onerous, and it is something that the Defence have never requested.
But, Your Honour, what we have requested, and it has applied before other international courts which may have some persuasive effect on Your Honour in considering this matter, is that rather than just dumping boxes of documents on a party, in a bid to focus the issues, in a bid to show that they have turned their mind to disclosure obligations rather than just emptied out cupboards into boxes, they have to, in my submission, detail why a document is being served. Is it because it is, in its totality or in part, Rule 68? Is it because it's Rule 66? Or why? Is it because they are intending to use it for trial under 73(F), I believe it is, or not? Your Honour, that has not been done.
In my submission, as far as trial management is concerned, as far as creating a safety net at an early opportunity to prevent a miscarriage of justice or unfairness to a party, that procedure can very painlessly be put in place. My learned friend has articulated a galaxy of stars, a constellation of people that are working around him that are all phenomenally able; they, the lawyers, without any mention of the investigators and the other resources at his disposal.
I cannot see for the life of me, Your Honour, with the greatest of respect, why there would be the slightest trepidation or reluctance on the part of the Prosecution to have such an officer simply sign off that they have fulfilled their legal obligations under the rules. It is not a favour that the Defence are asking; it is a simple procedural safeguard.
Your Honour, in relation to the new disclosure, it has been served just before Your Honour came in. I haven't had an opportunity to go through it, although my learned friends, both the Acting Prosecutor and his -- and perhaps lead counsel in this case, have very ably given me a succinct summary and I'm very grateful for that courtesy.
Your Honour, it does appear that there are a very great number of witnesses. They all have to be prepared. I won't go on any longer. Perhaps that is relevant to the commencement date of the trial which will be dealt with a bit later.
Your Honour, if you will bear with me one moment, I need to consult, perhaps.
Your Honour, I'm very grateful for the assistance of my friend. As far as your previous question is concerned about the exhibits we've had, Your Honour, I stand by my submission that I'm not sure of the extent of disclosure. But for the sake of clarity, we were disclosed on the 17th of May one CD which had 15 documents on it. Whether or not they are going to be exhibits or 68 or they were just put in there, I don't know at this moment because that was not properly delineated.
On the 11th of August, the Prosecution very kindly, I must say, gave us 83 documents, which is said to be exhibits, including logs and letters, and also 97 open source documents. But, Your Honour, of course one looks at the number of Prosecution witnesses and then looks how they have whittled it down to 150, 160 - I don't know exactly how many - 153 core witnesses, never mind the pool that's a backup that perhaps we can count on seeing some of.
But, Your Honour, there should be, in my submission, a statement from the Prosecution stating do we have all the exhibits or not. If we don't, under the rule that I have already made submissions on, we are entitled to those exhibits. But, Your Honour, some documents have been given. The extent to which the full exhibit list and documentary evidence has been disclosed is very much in issue. I am, for myself, extremely uncertain and doubtful that the Prosecution have properly served the exhibits that they intend to rely upon at trial.
So, Your Honour, to that material extent, my submission is, with the greatest of respect, unchanged.
Your Honour, I'm grateful of the time. Those are my brief responses, or my responses anyway, if not brief, to my learned friend's submissions, unless you have any questions at this stage, Your Honour.