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

  • Good morning. I notice there's changes of appearances at both bars. So, Ms Alagendra, if you would give us appearances for the Prosecution, please.

  • Yes. For the Prosecution is Ms Julia Baly, Mohamed Bangura, myself Shyamala Alagendra and Kirsten Keith, your Honour.

  • Good morning, Madam President, your Honours and counsel. On the Defence bar there is myself Terry Munyard and Morris Anyah.

  • Thank you, Mr Munyard. If there are no other matters - Mr Bangura, you're on your feet.

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.30 a.m.]

  • Good morning, your Honours. Your Honours, with your leave may I raise a matter to do with a witness who has already testified before this Court and that is 362. Your Honours, it's got to do with exhibits which were introduced through this witness, were tendered through this witness.

    The Prosecution's attention was drawn to the fact last evening by CMS that the exhibits which were tendered through this witness and marked were about to be circulated publicly, but, your Honours, the Prosecution's position has been that documents which are introduced through witnesses in closed session ought to be treated confidentially and should not be circulated publicly.

  • Mr Bangura, there was no application to make them either confidential or under seal. It's incumbent upon the party moving to make such an application.

  • Your Honours, be that as it may, the Prosecution at this point wishes to crave your Lordships' indulgence to ask that this application be entertained at this stage, otherwise Court Management is about to actually circulate the documents as public documents, your Honours. If your Lordships would be indulgent to hear the Prosecution and our application.

  • We will certainly hear the application.

  • Thank you, your Honours. Your Honours, the Prosecution respectfully applies that the documents which were introduced through witness TF1-362 and marked as exhibits P-86, P-87, P-88 and D-13 be marked as confidential and kept under seal.

  • Are you moving a Defence exhibit as well as a Prosecution exhibit?

  • Your Honours, I was going to do that but --

  • Well, let us hear that application and why you should move a Defence exhibit.

  • I take the view that if we are treating the exhibits introduced through the evidence by the Prosecution as confidential and those also introduced by the Defence, which have not been objected to by the Prosecution, they should be marked confidential equally, your Honour.

  • Fundamentally you haven't addressed why these witnesses - this witness exhibits 86, 87, 88 and D-13 should be marked as confidential.

  • Your Honours, in exhibit I believe P-86 the witness's name and I believe in other - in the other exhibits as well the witness's name appears and her signature as well and I would take the view --

  • Your Honours, in P-86 and P-87 the witness's name and position are mentioned as - are mentioned in the position the witness occupied.

  • [Microphone not activated]

  • Mr Anyah, I will obviously give you an opportunity to reply.

  • I'm just concerned about the degree of specificity with which our learned friends are proceeding in describing the witness's identifying information on these documents and we're in open session and I don't want them now to come forward with an argument that, well, they have indicated the particulars.

  • I can appreciate your point, Mr Anyah. Mr Anyah, whilst we appreciate your point we don't think it's necessary at this point to take the matter in closed session. Mr Bangura, please continue.

  • Your Honours, while I'm on my legs I've just been informed by my colleague here that there is information indicating that CMS has circulated and marked all the exhibits tendered through this witness as confidential. Maybe we could get a clarification on this from the Court Officer. I've just been informed.

  • Your Honour, they were sent out as confidential as a precautionary measure pending the decisions that are pending before the Chamber and the confidentiality was a precautionary measure which can be removed when the Chamber grants its decision.

  • I'm not going to go into it, but I would observe that documents that are marked confidential and/or under seal are by order of a court and until the Court so orders they should not be confidential and/or under seal. Continue with your application, Mr Bangura.

  • Thank you, your Honour. Your Honours, might I mention in P-86 and P-87 we have descriptions of the witness and positions that the witness held and we believe that these are clearly - these could clearly identify this witness to the public generally. P-88 has got the witness's signature on it and we believe that these documents taken together could easily identify who the witness is.

    Your Honours, the Defence exhibit, I believe counsel tried to get the witness to make a marking on it, I'm not sure whether that marking was made, which was to indicate that this was an exhibit which came from the witness.

  • My recollection is that was not pursued, however I will be subject to correction when the Defence make their reply if necessary.

  • But, your Honour, as counsel had argued before this Court, and the Prosecution I believe argued against, but the decision - the ruling of this Court is that the documents looked at and read together would suggest that they came from the same lot or were made at the same time. Your Honours, we would adopt that same view, that these are documents which came from the same source, and that's the ruling of the Court right now, and that they should be treated in like manner. To that extent, your Honour, I apply also that the Defence exhibit be marked as confidential.

  • Mr Bangura, I don't understand, which documents came from the same source? Which documents are you referring to?

  • The Defence exhibit, the document which the Defence introduced as an exhibit, they had argued that this document was about - well, it's dated about the same period as the other documents which the Prosecution had introduced and they had argued further that that suggested strongly that they came from or were part of the same set of documents, if I am right, and then there was a ruling by this Court that in fact the document be admitted and tendered as an exhibit.

    So our position, your Honours, is if that is the ruling and the Prosecution seeks to have its documents which were introduced as exhibits marked confidentially, then the document which the Defence also introduced should in like manner be marked confidentially since the ruling of this Chamber based on the argument of the Defence is that they came from or were treated as documents that came from the same source.

  • Mr Bangura, as I recall the Defence exhibit resembled in content and date and time frame another handwritten document that was never exhibited by either party. I don't recall the Chamber ruling that the Defence exhibit fell within the same time frame as the Prosecution exhibits per se. I don't recall that at all. But I do recall that there was a handwritten document within the same tab number where exhibit D-13 came from that resembled in content the typed exhibit D-13. That's what I recall. Now that handwritten document was never tendered by either party in evidence.

  • I clearly recollect, your Honour. But the document which the Defence tendered, I stand corrected, was one which my learned friend argued bore not the same date but was created about the same time as the other documents which the Prosecution had introduced and that was one of the bases on which the Defence argued that the document be admitted; that it could have come from the same set of documents from which the others - the Prosecution applied to be admitted in the trial.

  • I'm sure we will hear from the Defence in due course.

  • Mr Anyah, you've heard the application. It relates to the three Prosecution documents and one Defence document which have been tendered and the application is to have them marked confidential.

  • Thank you, Madam President. I understood counsel for the Prosecution to also suggest that they were seeking to have all Defence exhibits marked as confidential and, just so the record is clear, we also introduced D-12. I don't know if they're seeking to have D-12 also.

  • I only have a note of D-13.

  • Isn't D-12 a public document already? It's the Truth and Reconciliation report that's been publicised.

  • And I think that's why the Prosecution didn't make any application in respect of that document.

  • Yes, I just wanted to seek clarification on that. There are a number of issues that are implicated in this discussion. In the first instance there's a matter sub judice before the Chamber, this very issue is pending before the Chamber.

    The Prosecution I believe on 25 February filed a motion in respect of TF1-371 where in addition to seeking that exhibits which were introduced through that witness be treated as confidential they also sought a general remedy that all exhibits which are introduced in closed sessions be automatically treated as confidential, meaning only the Chamber, its staff and the parties would have access to it.

    We filed a response to that motion I believe on Monday 3 March. That matter is still pending. I don't know if as of today they have filed their reply, because your Honours in a decision last week called for expedited filings on this issue. So we have circumvented procedurally the general rule that we do not raise issues that are sub judice and the Chamber in its discretion has granted them leave to do so this morning. They did not raise the issue yesterday.

    A second issue that's implicated is what CMS has undertaken. CMS has now felt the pressure of this issue and on its own initiative has decided to mark as confidential exhibits which I would propose to your Honours the presumption is that they are public until otherwise ruled so by the Chamber. CMS has now classified them as confidential. There is no order from the Court directing that.

    Third of all, we are now before the Chamber, no written application has been made. They prepared these exhibits before we came to court to examine this witness. I would point out that exhibit D-13 which I introduced was a Prosecution document. It was not a Defence document. That document came from their set of documents. So of the four exhibits in question, P-86, P-87, P-88 and D-13, all of them are their documents. Before they called this witness and before they introduced those documents they could have moved in writing to the Chamber that they wished to have these documents classified as confidential. They did not do so.

    Then we are faced with the rules that govern these issues, Rule 69, Rule 75 and Rule 79. All of them - built into all those rules consistently is a presumption that all these documents and protective measures have to be balanced against the rights of the accused and the presumption is in favour of their public nature. It stems from Article 17(2) where Mr Taylor has the right to a public and a fair trial.

    So now not only did they not move before they called the witness to have these treated confidentially, they now come and they want even documents they produced that we introduced, Defence exhibits, to be treated as confidential. We of course oppose this and the Chamber has the matter before it. We will be governed by whatever ruling is forthcoming in respect of the preceding motion and I just think it is highly inappropriate that CMS would go ahead and cave into the pressure and classify these as confidential.

    Now with respect to the specific arguments as to the merits of marking these exhibits as confidential, our learned friend indicates that on P-86 and P-87 there is information that would disclose the identity of this witness. Well, my recollection of those exhibits is that there are several other names in addition to the witness's name that appear on those documents. There are signatures of others besides the witness. It would be highly unlikely that somebody, out of all of those names, would know the particular witness to which these documents pertain.

    Then with respect to P-88 he refers to a signature. Well, there are two or more other signatures on that document as the Court will recall and I don't see how but for counsel mentioning that the witness's signature is one of them - I don't see how somebody would be able to discern amongst the three signatures which one pertains to this witness. So I don't see that there is any merit to this suggestion that the witness's identity is invariably and automatically disclosed once these documents are made public.

    Again I would just perhaps stress that these procedures that we follow are there for a reason and when we try to circumvent them it invariably interferes with our client's rights and it does not serve the process well and I would oppose this application. I would ask that if they wished to make this application they could do so consistent with whatever decision is forthcoming from the Chamber in respect of the issue which is already pending. Now the Chamber has the discretion if it finds that a document so clearly identifies the witness and that it vitiates its prior protective measures orders, the Chamber has the discretion to order CMS to black out certain portions of a document, but again the presumption would remain in favour of its public nature. Thank you, Madam President

  • Thank you, Mr Anyah. We will discuss this.

  • Just before we begin that discussion, Mr Anyah, perhaps you could assist me. As you've mentioned the Trial Chamber has a duty to balance the rights of the accused against the protection of the witness concerned. Now if these documents were made public it seems to me that they would serve no purpose because they would not be linked to any available sworn evidence. They would be just be disparate documents that the public can make whatever it chooses from. So how do they affect the rights of the accused?

    Whereas, on the other hand, if they were published there is some chance, because the witness's name appears in them, that he may be identified.

  • Thank you, Justice Lussick. The Chamber will recall in our submission on Monday we made clear the need to approach these issues on a case by case basis and indeed the rules do speak to a presumption that these documents are public. The Chamber nonetheless retains the discretion on a case by case basis after undertaking this balancing act, if you will, between the rights of the accused and the purposes or utility of having these documents in the public domain. The Chamber does have the discretion to say in this particular instance perhaps it will not serve much of a purpose if these documents were public. That is for your Honours to determine.

    Our position at the fundamental level is that the presumption is in favour of the public nature of these documents and to the extent on an individual basis your Honours determine that a particular exhibit should not be public, the Chamber of course has the right to do so.

    I would stress again that any automatic classification of closed session documents into a confidential category would substantively vitiate the rights of the accused to a public trial. Our position remains that we have to approach these on a case by case basis.

  • Yes, thank you, Mr Anyah. I do appreciate the Defence position.

  • Thank you, your Honour.

  • We have considered the applications and --

  • Your Honour, just before your Lordship makes your ruling, gives your ruling on this point, there is an issue that I just wish to raise and it hasn't to do with the way your Lordships are going to rule on this either way.

    Your Honours, it has got to do with a comment, a remark, made by my learned friend in his response to the argument that I made this morning and this has got to do with some kind of insinuation that he seemed to have cast on the conduct of the Prosecution here. I will read straight from the record, your Honour.

  • I think I recall. It was the use of the word "pressure", is that what you're referring to?

  • "Pressure", "inappropriate" and so on, your Honours. I'm not sure this is the sort of conduct that the Prosecution would engage in and I don't know where my learned friend is coming from with this sort of allegation or insinuation, but maybe he would need to clarify for your Lordships and for the public. It's wholly inappropriate for the Prosecution to be cast in this sort of light, your Honour.

  • Mr Anyah, it appears to be an argument concerning your conduct in court. I think in the circumstances I'd like to get this ruling out of the way and then we will deal with the conduct issue.

    The Court has considered the applications and submissions of both parties. The Court has a duty to balance the rights of the accused and the public to be aware of a public trial against their duties to security of witnesses and with that in mind we have considered the applications. We note that the documents do not identify the witnesses by name, some of them by name, and certainly there are signatures which do, and the documents do not clearly identify the witness in question. We do not see any threat to the witness from the public nature of these documents and accordingly we refuse the application to have them made confidential.

    We would add by way of observation that the Court Management services should not take it upon themselves to make documents confidential if no order has been made and, secondly, that an application of this nature should be made appropriately and timeously and the appropriate time to make such an application is when the documents are tendered. Accordingly the application is refused.

    Now Mr Bangura has raised an issue of the use of terminology by counsel for the Defence. I use the word "conduct" very broadly. I don't imply that it - but you've heard the allegation and I invite you to reply.

  • Thank you, Madam President. I will make a few observations. First of all, when we argue some of us argue vociferously for our clients and occasionally terminology might be misused. There is a basis for my suggestion that there might have been pressure to CMS and I'm not suggesting by the Prosecution. Counsel for the Prosecution and I spoke late yesterday evening and a lot of the conversation centred around whether or not these documents should be circulated and in particular there was a concern that CMS was about to circulate them publicly. I'm referring to Mr Bangura and I, we spoke. He gave me a call yesterday evening and I returned his call and at the end of the discussion I recall counsel saying to me that it appears that CMS had decided to hold off circulating them until this morning. And I had acquiesced with counsel that he could raise the issue this morning before the Chamber.

    So clearly it was my understanding when I spoke with counsel that CMS was contemplating what to do under these circumstances and this morning we come to court and it turns out that they had opted to actually circulate it but to do so confidentially. My impression as of yesterday evening was that it would not even by circulated until we came to court. Of course I made clear that none of us had the authority to intervene in the manner in which CMS functioned.

    So when I say that there is pressure, the basis for that is that as of yesterday evening I had a conversation that suggested that CMS was unsure of what to do and as of this morning it turns out that they had taken a course of conduct or action that in my view is far from neutral.

  • Can I clarify then, you are not saying that the decision of CMS was influenced by any intervention by the Prosecution.

  • I am not saying that and --

  • Because I must say that my first initial reaction was that there was some sort of intervention.

  • And to the extent --

  • I'm just clarifying that point and putting it on record.

  • The pressure you're referring to, Mr Anyah, was the pressure of having to make a decision, is it?

  • It appears to be the case, yes, and I certainly did not mean to insinuate or suggest that the Prosecution did anything underhanded under the circumstances.

  • Thank you for that clarification. Mr Bangura, you have heard the clarification and you have heard the comments of the Bench. I do not speak for my learned colleagues, but I'm satisfied that there was no intervention on the part of the Prosecution.

  • Thank you, your Honour.

  • Counsel, I think we've dealt with all preliminary maters and I will therefore proceed to remind the witness of the oath and we will proceed.

    Mr Witness, the talk that has just taken place is not to do with you. We are now going to continue to hear your evidence. I will therefore remind you of the oath you took yesterday and the obligation on you to answer questions truthfully. Do you understand?

  • Yes.