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

  • Good morning. We will take appearances first, please.

  • Good morning Mr President, your Honours, opposing counsel. This morning for the Prosecution, Brenda J Hollis and Maja Dimitrova.

  • Good morning your Honours, opposing counsel. For the Defence today myself Courtenay Griffiths, my learned friends Mr Morris Anyah, Mr Terry Munyard and our case manager Ms Salla Moilanen.

  • Thank you, Mr Griffiths. Well, firstly, I note that the accused is not present in Court but he is represented by counsel and the accused has expressly waived his right to be present. Accordingly, pursuant to Rule 60, this status conference will proceed in the absence of the accused.

    Basically this status conference has been appointed so that the parties can raise any last minute issues, if any, bearing in mind that the Defence stage of the trial has been ordered to proceed next week on 13 July.

    Mr Griffiths, do you have anything to raise?

  • [Open session]

  • [The accused not present]

  • [Upon commencing at 9.30 a.m.]

  • Just one matter, Mr President, and it's this: It's the format we should follow next week. What I would propose is that we open our case on the Monday and that we commence with Mr Taylor's testimony on the Tuesday morning, if that's agreeable, on the basis that everyone might need some time on the Monday to digest what it is we are submitting in opening and they would have the remainder of Monday to do that in preparation for the start of testimony on Tuesday morning.

  • Thank you, Mr Griffiths. What's your view on that, Ms Hollis?

  • Well, the Prosecution would have no need for additional time, but we have no objection to the suggestion.

  • Yes, Mr Griffiths, we will proceed along those lines. We will expect the Defence opening statement on the Monday and evidence called by the Defence can be commenced on the next day.

  • I am most grateful.

  • Mr Griffiths, while we are on the subject of opening statements, I know it's not necessary to point this out to you but I would draw your attention to Rule 84 which states a well-known principle anyway; that the opening statement will be confined to the evidence the Defence intends to present in support of its case. I simply draw your attention to those requirements.

    Did you have anything else to raise?

  • Nothing further, your Honour.

  • Thank you. Yes, Ms Hollis.

  • Thank you, Mr President. Unfortunately, there remains several issues that the Prosecution wishes to once again address.

    The first matter relates to the issue that was raised before in relation to the number of witnesses to be called by the Defence and the estimated time for the direct examination of those witnesses.

    The Defence has filed an updated and corrected witness summary and in that witness summary they have provided estimates of testimony. There may be one witness for whom no estimate was provided, but the greatest majority of witnesses now have time estimates and the Defence has added witnesses and we now have some 256 witnesses, plus the accused, which is of course almost three times the number of witnesses for the Prosecution.

    Now, in terms of the estimated time, we did request that the Defence, as an alternative means of determining the length of their case, provide us with the estimated length of their case in toto and we were told basically to work with the time estimates given in the updated and corrected filing of witness summaries. If we work with those estimates we now have a time of some 94 weeks in court for direct examination.

    If we were to follow the practice in the Prosecution's case and have almost the same amount of time for the Prosecution, the Defence case would take about four years. Now, we suggest again that these are disproportionate numbers of witnesses and excessive length of the Defence case.

    Now, in a related request we made to the Defence to try to get a better understanding of what might be the time limit for the witnesses they truly intend to call, we asked again the Defence provide us a list of core witnesses and those witnesses they considered back-up and the Defence indicated that it was unable to do that and was not required to do so.

    The Defence, however, did state that it would endeavour to give the Prosecution a more defined list of witnesses towards the end of the accused's evidence.

    Now, with that being the status of matters we would ask that the Trial Chamber request the Defence to provide a list of core and back-up witnesses by the conclusion of the accused's testimony. That would put both the Trial Chamber and the Prosecution in the position of trying to determine if a request for further orders, or further orders, might be appropriate. So we would request that of the Trial Chamber.

    Now, in terms of the adequacy of the summaries, which was an issue before, the Defence has now provided summaries for witnesses for whom they had not provided summaries and in some instances appears to have updated the summaries that they had previously given. We find most of those summaries remain inadequate.

    However, the Defence has stated that it will ensure that all the information related to upcoming witnesses will be provided 21 days before the witness testifies, when the witness's identity is provided to the Prosecution. The Defence has also stated that a summary of any new information they obtain as they conduct proofing sessions will be provided to the Prosecution forthwith. So at this point we rely on those assurances, keeping in mind of course that it is not simply a matter of providing the Prosecution with what it asks, but if we have inadequate summaries it will impact our ability to conduct effective cross-examination in a timely matter.

    We also raise the issue relating to three witnesses who by their summaries appeared to be called to give expert evidence and that was 034, 052 and 082. The Defence has responded that they are not calling these witnesses as experts. However, if you look at the summaries - and it is the nature of the evidence they give which determines if they are an expert, not how the party calling the witness characterises it. If you look at the summaries it appears that this is evidence that would have to be given by expert witnesses. For example, 034, in the summary, supposedly will tell your Honours the witness's opinion regarding the ethnic nature of the conflict and what appears would be other opinion evidence.

    052 is a geologist who purportedly will comment on the report of Ian Smillie, who appeared as a Prosecution expert witness. And witness 082 is a mortician who purportedly will comment on the cause of death of Sam Bockarie.

    Now, such evidence, we would suggest, is expert testimony and we ask that your Honours order the Defence to comply with Rule 94 bis regarding these three witnesses and that they provide the Prosecution with the names of these witnesses who it appears will be called to give expert evidence.

  • I just point this out: I appreciate what you say, Ms Hollis, but if the Defence says that these are not expert witnesses but witnesses of fact, then surely they will be bound by that. If any of those witnesses attempts to give opinion evidence, we simply won't allow it.

  • That is correct. That is an option. It would appear, however, we would suggest, that another option that may be more fair to the Defence's presentation of evidence is that they be allowed to call these witnesses to testify as they wish them to but that the character of the testimony be properly characterised. Now, of course should they choose not to treat them as experts we would object to whatever portions of their evidence appear to be expert testimony. We won't want then to have a delay while they then try to present them as experts. So those are two options. We do appreciate the option your Honour has suggested.

    Now, another matter that we had raised before was a request that the Defence provide the Prosecution with a list of the witnesses the Defence reasonably expected to testify in a given month one month in advance. It's important for the Prosecution to have such a list because it enables us to organise our work and to assign tasks. And it's consistent with the assistance that was given by the Prosecution to the Defence during the Prosecution case in chief.

    The Defence has declined to provide such a list, indicating that as they give us names of witnesses 21 days before they testify we will have a good idea of who they are likely to call and that they will be calling their evidence in roughly chronologic order and that should assist us to narrow down the field.

    Now, we suggest that having a good idea or narrowing down the field is not the kind of assistance that is helpful and we would again ask the Trial Chamber to request the Defence to provide us with a list of witnesses the Defence anticipates it will call each month one month in advance. We don't believe that's onerous. We believe the Defence must have a good idea of who they will be calling in a given month and it would greatly assist the Prosecution in organising its work.

    Now, a matter that has arisen relates to the two week notice that was provided by the Defence. At our last status conference, on 8 June, the Defence indicated that it would endeavour to ensure that the Prosecution had a comprehensive list of the exhibits the Defence would be introducing through the accused in good time before the start of his testimony. Now, we have all recently received the notice for the week of 13 July and a copy of exhibits and we've received only exhibits that will be used for that week, so we have not received a comprehensive list.

    Certainly the practice during the Prosecution case was that a comprehensive list of the exhibits that would be used with the witness was provided, even if it appeared a witness might carry over into the next week. There was no parcelling out of exhibits by week.

    We would ask that the Defence be requested to provide the exhibits - not just the list, but the copies of exhibits - that they will be using with each witness at the two week point. That would include amending what they have provided so far for the accused.

    In terms of the time that a witness would take, again it has been the practice to provide the entire time for direct examination but again we find that in their notice the Defence has parcelled that out for the week of 13 July only. For planning purposes it is helpful to have the estimated time for the entire direct examination.

    We had also asked that the Defence provide us with copies of exhibits, or websites for publicly available exhibits of the exhibits that they anticipated they would use in a given month and that they provide that to us when they provide the list of witnesses they anticipate will be called in a month. This gives us the time we would need to research those exhibits so that we can be prepared during direct examination to determine whether there are valid objections to be made and also for our purposes during cross-examination.

    We would ask that the Trial Chamber request the Defence to provide us with copies of exhibits they reasonably anticipate they will use each month a month in advance.

    Again, the Prosecution is very aware that this would be what they anticipate they would use and it may arise that other exhibits are used, just as it may arise that other witnesses are called. We understand that and we understand that flexibility, but we don't believe that it undermines our basic request or the assistance that such information would provide to the Prosecution.

    Now, when we met the last time on 8 June the issue also arose, and we had raised the matter, about the accused's contact with the Defence witnesses. At that point in time the Prosecution had indicated that that was within the discretion of the Trial Chamber to allow, and had also indicated that the Defence had ongoing investigations and thus we had stated that we had no objection to that procedure.

    However, the Prosecution can no longer take that position. The Prosecution has information that in fact the accused has apparently abused privileged access lines to talk with persons not entitled to privileged communication with the accused. Therefore, the Prosecution has concerns about the ability to protect the integrity of the proceedings should the accused be allowed contact with witnesses and we are no longer in a position to be able to support such contact.

    Should your Honours be nonetheless mindful to allow such contact, then the Prosecution requests that your Honours direct that such contact be monitored conversations only so that there is some way to ensure the integrity of the proceedings when these contacts occur. In this regard the Prosecution is mindful that this accused is not representing himself but, rather, has many counsel available to assist him and to present the case. Therefore, he has no kind of inferred privilege that would attach to an attorney representing him.

    So, your Honours, these are issues that we once again raise and we would ask that your Honours would act on these issues as we have requested. Thank you.

  • Thank you, Ms Hollis. Do you wish to reply, Mr Griffiths?

  • Yes, please, Mr President. We have attempted throughout, within the limitations of the resources available to us, to be as helpful as we possibly can to the Prosecution.

    Now, dealing seriatim with the matters raised by Ms Hollis, first of all witness numbers. Yes, we are aware that the list of witness summaries served by us do approach the figure of 250. However, it is important to note, from statistics provided to me by my case manager, that the total disclosure for the Prosecution was some 332 witnesses, of whom some 200 were listed as being core witnesses and back-up witnesses, and eventually some 91 were called.

    Now, that being so, it seems to us that the number of summaries served by us in the circumstances cannot be regarded as excessive. Furthermore, we did indicate on previous occasions that our investigations are ongoing and so consequently we are unable to complete the sifting process, which I indicated to your Honours on an earlier occasion was an important aspect of the preparations we were conducting.

    I have further indicated that not all of the witnesses named by us in that schedule will be called. So consequently, whereas we hear the concerns being expressed by Ms Hollis regarding the length of the case, I for one certainly have no intention of being here for another four years.

    Now, so far as the provision of a list of core and back-up witnesses are concerned, we see no provision in any rule or procedure which requires us to provide that. And, in any event, given that our investigations are ongoing, it would be extremely difficult for us to provide such a list to the Prosecution because for us to attempt to do so might well fall foul of the inadequacies and errors which my learned friend has already pointed out in the list of 250 witnesses or so we've called. And so, consequently, rather than open ourselves up to further criticism, it seems best in the circumstances, to my mind, that we restrict ourselves to the orders made by your Honours on a previous occasion. That is, disclosure some three weeks in advance, or is it two weeks, of the names of our witnesses and we will abide by that.

    The third point, experts. We have indicated clearly that the three particular witnesses, the numbers of which have been provided by Ms Hollis, are not experts. There is perfectly adequate provision within the rules of evidence, and no doubt the Prosecution will be quick to interrupt and comment if we were to elicit from those witnesses opinion evidence which falls foul of the rule against the provision of such evidence by non-experts. So we feel that there is adequate protection for the Prosecution in that regard, and so consequently we do not see that this Court needs to make any further orders in that respect.

    So far as monthly lists of witnesses are concerned, I wish we were in the happy position of having sufficient resources to be able to research all matters carefully enough to be able to provide such information that far in advance. Unfortunately, we are not in that position and consequently we will not be in a position to provide that. And the same goes for a list of exhibits a month in advance.

    Now, the final matter I want to deal with is the change of position by the Prosecution so far as access to the accused. It will be recalled that on the occasion when this matter was discussed it was the Prosecution who raised this issue and helpfully provided the Court with a copy of an authority from the ICTY dealing with the matter. We are somewhat concerned that they have now used the pretext of certain suspicions raised regarding contact between the accused and certain individuals, a matter which has not been thoroughly investigated by those who have direct responsibility for those matters, that they should have used that to now seek to have this complete about-face in their position.

    Now, when my learned friend asks that any contact should be monitored, I am unclear. Does that include any contact between Mr Taylor's lawyers and him, or what are we talking about? Are we talking about the monitoring of telephone conversations? That happens at the moment, in any event. Because the very matter raised by Ms Hollis came about because his calls are monitored and because transcripts were available of those conversations. So what in addition is being asked for in terms of protective measures, if I might style it such, in order to ensure that Mr Taylor's every word is monitored by a third party?

    In our submission, there is no need for any additional measures in this regard. Additionally, we submit that there should be no change in the position adopted and ordered by this Court on a previous occasion that we can indeed have access to Mr Taylor during the giving of his evidence. I have said our investigations are ongoing. We will need access to him in order to ensure that those are efficiently and adequately carried out and the last thing I would accept is any suggestion that any such contact between us and Mr Taylor is monitored. I am not willing to accept that at all.

  • Mr Griffiths, could you address us on the Prosecution request for you to provide the actual exhibits two weeks before each batch of witnesses. If I get that correctly, Ms Hollis, yes.

  • Well, I think that is the current position, your Honour, and as far as I'm concerned it's a provision with which we've complied. Two weeks in advance disclosure of the exhibits to be used during that week of trial, and we've complied with that. I see my case manager nodding in agreement and she is an expert on these matters.

    Can I also make this point: If we are talking about the monitoring of conversations involving Mr Taylor, then it seems to us that any calls from him to a potential witness cannot be the subject of such monitoring but should be clothed in the same legal professional privilege which obtains when he speaks to his lawyers.

  • Mr President, may I clarify two matters?

  • The first matter has to do with what the Prosecution provided. First of all I point out that indeed the Prosecution did provide its witness list as core and back-up. The number of core witnesses was 139 and the number of back-up was 65, but we did make that distinction, and it was 204 total.

    Secondly, the Prosecution has no change of position in relation to the counsels' ability to speak with the accused and that is not what we talked about when I made the point. It was the accused's contact with witnesses. That was the point I raised, so we don't want to conflate those.

    If the accused has the same privilege as his attorneys then we have no protection in the system for any kind of integrity of the proceedings. He is not bound by any professional code of conduct and he's not unrepresented. The privilege has to do with counsel talking with the accused, not with the accused talking with potential witnesses. So we wanted to clarify those two points. Thank you.

  • Thank you. What we are going to do is just dispose of a few other matters that the Bench would like to raise and then we are going to have a very brief adjournment and consider the issues raised by the parties.

    One thing, Mr Griffiths, I wanted to draw to your attention is that there has been an order for protective measures made in regard to two categories of witnesses and we note that pseudonyms have been given by the Defence to some witnesses who don't appear to fall within either of those categories. For instance, the alleged diamond traders, that is DCT-004, 119, 121, 145, 204, 216, 225 and 176. So it's something for you to consider. It may well be that you are under the impression that these witnesses are protected under existing protective measures orders when in fact they may not be.

  • We will certainly review the situation, your Honour.

  • We will just have a very brief adjournment and we'll be back. We will let the Court Attendant know when we are ready to come back.

  • [Break taken at 10.00 a.m.]

  • [Upon resuming at 11.05 a.m.]

  • A number of issues have been raised by the Prosecution regarding the conduct of the case and we've considered what the Prosecution has to say and also the Defence response.

    Dealing first with the Prosecution request for the Defence to provide a list of core and back-up witnesses, the Trial Chamber appreciates that investigations are ongoing and we accept what the Defence says that they are not in a position as yet to make up the two lists, that is a core list and a back-up list. This is a matter that the Trial Chamber thinks is appropriate to revisit closer to the end of the testimony of the accused and we intend to do that.

    Moving on to Ms Hollis's comments regarding the provision of adequate witness summaries, we note those comments and those comments are part of the record and do not call for any specific order.

    As for the Prosecution application that certain witnesses be classified as expert witnesses, we note that the Defence says that they are not expert witnesses. The Prosecution in that regard is protected by the rules of evidence and in our view no order is necessary.

    The Prosecution has also applied for an order that the Defence provide a list of witnesses one month in advance of their evidence. We note that the Defence says that it doesn't have the resources at present to provide such information one month in advance.

    The Trial Chamber is of the view that the situation for the Defence may be a little clearer should the ongoing investigations prove fruitful. This is another matter, therefore, that the Trial Chamber considers appropriate to revisit closer to the end of the accused's testimony.

    As regards the Prosecution's application for an order that copies of exhibits be provided by the Defence one month in advance of the evidence given by the specific witnesses, we note that there is an existing order that the actual exhibits are to be produced two weeks in advance of the witness's testimony. We do not see any reason to vary this order. However, the Prosecution can always apply for relief if it can demonstrate specific prejudice.

    The last matter raised by the Prosecution involves the question of the contact by the accused with certain witnesses, or potential witnesses, and the Prosecution claims that the accused has apparently abused privileged access lines to talk with persons not entitled to privileged communications with the accused and, accordingly, the Prosecution ask for an order that such contact be in the form of monitored conversations only so that there is some way to ensure the integrity of the proceedings when these contacts occur.

    The Trial Chamber notes that specifically the integrity of the proceedings is a matter of concern to the Prosecution and we therefore hold that if the Prosecution wants to pursue this application then a formal motion should be filed in order to enable the Trial Chamber to consider all of the circumstances pertaining to the issues.

    There are just two more matters that the Trial Chamber would like to mention. The first one is to point out to the Defence the provisions of Rule 73 ter (D) which enable the Trial Chamber to reduce the number of witnesses if an excessive number are being called to prove the same facts.

    We simply mention that at this stage, Mr Griffiths, not because we are contemplating orders at this stage but simply to make you aware of the fact that it is something the Trial Chamber can consider.

    The other thing we would mention is simply to reiterate that this case will open for the commencement of the Defence case next Monday, that is 13 July. On that day the opening statement will be made by the Defence and evidence in the Defence case will commence the following day.

    Thank you. We will adjourn now until next Monday.

  • [Whereupon the hearing adjourned at 11.14 a.m., to be reconvened on Monday, 13 July 2009 at 9.30 a.m.]