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

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.30 a.m.]

  • Good morning. The parties may have been advised that we are not going to have the benefit of LiveNote apparently. Well, as I speak I see LiveNote appearing on my screen and so I have had contrary advice on that.

    In any event, we will take appearances first please.

  • Good morning Mr President, your Honours, opposing counsel. Appearing today for the Prosecution are Mohamed A Bangura, Maja Dimitrova and myself, Brenda J Hollis.

  • Good morning Mr President, good morning your Honours, good morning counsel opposite. Appearing for the Defence this morning are myself, Morris Anyah, and our case manager Ms Salla Moilanen. Thank you, Mr President.

  • Yes, thank you.

    Well, one preliminary matter. We've had very late notice from Mr Anyah that he intends to apply orally for the Trial Chamber to revisit its decision of last Monday in which it set a hearing date for 29 June.

    Now, Mr Anyah, before you go into any merits, what we would like to know is this. Is this application based on new facts that have arisen since Monday and could not have been put to us on Monday, or is it simply based on arguments that should have been put on Monday but for one - should have been put to us on Monday but for one reason or another were not?

  • Thank you, Mr President. Initially I would indicate that I have confirmed with learned counsel opposite, Ms Brenda Hollis, that they have in fact received the email I sent last night about this matter.

    In the first instance I apologise on behalf of our team for the lateness of the email, but your Honours will appreciate the fact that Mr Griffiths left The Hague on the 4th, headed back to Freetown and we crossed en route whilst I was coming to The Hague and it took some time for us to consult with each other as well as with Mr Taylor.

    Having said that, with respect to the matter raised by your Honour, Mr President, the basis for our application is different in many respects from issues raised by Mr Griffiths on Monday. These are not necessarily issues that could not have been raised on Monday, but because of the manner in which Monday's hearing evolved and comments made by Her Honour Justice Sebutinde in her dissenting opinion we gave further reflection to some of those issues and we had to research some prior Special Court cases to get indeed the specific date in which certain orders were issued vis-a-vis when a Defence case ought to commence. So that research effort, in conjunction with consultation between counsel and with Mr Taylor, generated what I would propose are four grounds upon which we seek reconsideration of your Honours' order.

    I would just add this. We don't make this request lightly. We appreciate the fact you gave due consideration to the issues even before your Honours rendered your decision on Monday, the 4th. In fact, you had indeed indicated on 9 April that you would in fact proclaim and put forth a date on which the Defence case ought to start on 4 May.

    So we know your Honours gave thoughtful and careful consideration to the issue, but we come in seeking reconsideration having considered the significant effect that a start date of 29 June would have on the smooth --

  • Well, Mr Anyah, I am sorry to interrupt you, but I feel you are starting to go into the merits of your oral application. Now, the question I asked you was put for this purpose. Unless there is some reason why we should depart from the normal practice of a dissatisfied party applying for leave to appeal, then that is the road down which we are going to go.

    Now one of the reasons we could depart from that normal practice is if there were facts that were not known to the Defence on Monday when our decision was made but have subsequently become known, but if in fact the basis of your oral application now is simply because there are arguments that could have been put on Monday but have not been put, or there are arguments that arise out of our decision, then that surely is a matter that should be the subject of an application for leave to appeal.

  • Thank you, Mr President. We appreciate the distinction. There is one fact that came out in Monday's hearing that we feel was significant that we had to apply our minds to. That is the comment by your Honour, Mr President, that the Court does not intend to have a recess in conjunction with the ICC recess. Your Honour indicated --

  • Well are you saying, Mr Anyah, that that is the first time you knew of that?

  • Well, that is the first time the Court formally pronounced on that. We had heard behind the scenes that this was a strong possibility, but Monday was the first time your Honours formally pronounced in a public setting that this would be the course adopted by the Court. That came as a surprise of sorts, in particular the date in October which your Honour suggested might be the time whereabouts a recess might be taken.

  • I am sorry, but I think you are going off the track here, Mr Anyah, because I specifically remember stating that very fact to Mr Griffiths in the midst of his submissions, he didn't make any arguments as to why that would affect the hearing date whatsoever and now as an afterthought perhaps you have come along here today and you have some arguments. Those arguments should have been put on Monday and, in my view, the Defence had plenty of time to put those arguments. So, do you have any other reasons as to why we should go down the road of reconsidering our decision on Monday?

  • Well I will just say this, Mr President. Your Honours have an extraordinary amount of discretion in this area. We could proceed as your Honour has suggested by way of an application for leave to appeal but, given the interests of all parties to expedite the course of proceedings in this case, that would only actually have the effect of slowing things down further.

    It seems to us - and it's general practice, both internationally and domestically - that a party may move the Chamber orally to reconsider a decision that it has rendered.

  • Yes, on proper grounds, that's quite correct.

  • And while it is the case that some of the issues that we proposed to advance today may have in conjunction with Monday's hearing been raised by Mr Griffiths, your Honour would appreciate the fact that we needed some time to reflect properly on all that was said in Court on Monday and we also needed some time to do some research to have our facts and records factually correct vis-a-vis the time frames that have been set by other Chambers, including your Honours, in other cases before the Special Court.

  • But we did not use any time frame set in other cases for our decision, Mr Anyah. That wasn't one of the things that you could have argued as to why our decision may have been wrong, or why our decision may need to be revisited. It wasn't given as any basis for our decision.

  • I appreciate that, Mr President, but I would respectfully suggest that due consideration might be had to the general practice before the Trial Chambers of this Court and it is something that properly could be laid for your Honours for their consideration.

  • Thank you, Mr Anyah. Before we deliberate, Ms Hollis, did you have anything you wanted to reply to?

  • Thank you, Mr President. Very briefly, Defence counsel has raised nothing new that would be a basis for reconsideration.

    As to the issue of specific dates in other cases, you may recall that by the letter dated 26 March of this year on page 3 one of the bullet points that the Defence put forward is that the delay requested in this case is less than in other cases, so the Defence must have - or should have - had in mind what those delays were and so could have argued that on Monday. Nonetheless, the delay that is to be given in each case is a case by case consideration that doesn't rely on other cases.

    In terms of considering the significant effect that the start date would have, again the letter that was presented by the Defence was an argument about the effect that it would have and Defence counsel certainly must have had that in mind Monday when he was making his representations and, if he chose not to expand on that argument, that doesn't become a new matter.

    In terms of the comment by the Presiding Judge that the Trial Chamber had in mind not to take the August recess, the Prosecution filed or presented a letter in response to the Defence letter and in that letter the Prosecution stated that it understood it was possible there would be no August recess and, in fact, the Prosecution would request there be no August recess. So again the Defence was on notice of this as a possible issue, could have taken it up and chose not to do so on Monday and so it's not a basis for reconsideration today.

    We suggest they have provided no basis for reconsideration and should then pursue the leave to appeal, realising of course they have three days from the decision to file such a leave. Thank you.

  • Thank you. Anything you wish to reply to, Mr Anyah?

  • No, I think I have covered most of the points raised by learned counsel.

  • [Trial Chamber conferred]

  • The Trial Chamber has considered the arguments of the Defence in support of its application for the Trial Chamber to reconsider its decision of last Monday in which it fixed a hearing date for the commencement of the Defence case as 29 June. The Trial Chamber has also considered the response by the Prosecution.

    In the Trial Chamber's opinion the Defence has not presented any new facts, or any change of situation, which would justify the Trial Chamber revisiting and/or reconsidering its opinion of last Monday and we decline the Defence application.

    However, we do not wish to leave the Defence without access to a remedy. We note that the time for applying for leave to appeal expires today, so we now make an order extending that time to next Monday, which is 11 May, as the limit for the Defence to file any such application for leave. When I refer to Monday, I mean close of business next Monday, 11 May.

  • We are grateful, Mr President. Thank you, your Honours.

  • Yes, thank you, Mr Anyah.

    Now, this status conference is concerned with the requirements under Rule 73 ter of the Rules of Procedure and Evidence. Today, after hearing from the parties, we will decide what must be filed by the Defence prior to the pre-Defence conference and we will also establish a deadline for the filing of the information and documents required under Rule 73 ter.

    Unless the parties have any particular procedure in mind, I thought it wise first to call on the Prosecution to indicate to the Defence what it would be asking to be filed pursuant to Rule 73 ter prior to the pre-Defence conference. Do you have any objection to that procedure, Mr Anyah?

  • Mr President, it would seem to us that perhaps another way of proceeding would be to have the Defence heard first vis-a-vis the requirements of the Rule and when in our view we think we would be able to comply with any orders imposed by your Honours.

  • Well, yes, I'm not saying that is not a good idea, Mr Anyah, but the fact of the matter is how can you say when you will be able to comply with an order made by us when we won't know what order to make unless we know what the Defence is asking for? I am presuming that the Defence may not stick strictly to the provisions of Rule 73 ter, but I take it you want to make a submission on a general basis?

  • Not necessarily, your Honour. Your Honour, the rule states what ought to be produced and there is a significant element of discretion given to the Trial Chamber vis-a-vis other specifics not expressly delineated in the rule but, given the prior discussion leading to this point and a trial date having been fixed on the 29th, I think we might expedite matters by explaining what we would be in a position to produce and when we would be able to do so.

  • All right, thank you. All right, we will hear first from you, Mr Anyah, then.

  • Thank you, Mr President. The rule, as your Honours are familiar with, requires certain matters that we have to comply with pursuant to order by the Trial Chamber before the pre-Defence conference is held.

    Rule 73 ter (B) (i) calls for a statement of "Admissions by the parties and a statement of other matters which are not in dispute". Your Honours will recall that on 26 April 2007 the parties in this case filed a joint statement of admitted facts and law. This was in relation to the Prosecution's obligations under a similar rule leading up to the pre-Prosecution status conference.

    In this instance I do not think that there will be additional facts and law that the parties would be in agreement with, so I don't think there is any need to produce any additional statement vis-a-vis this particular provision of Rule 73 ter. Yes?

  • Sorry, Mr Anyah, please continue.

  • Thank you, Mr President. With respect to (ii), "A statement of contested matters of fact and law", your Honours will recall the arguments we made leading up to your ruling on the Rule 98 submissions. Those submissions made by both sides illustrate the differing views we have about this case and it is unlikely that whatever we file will differ significantly from submissions made vis-a-vis our Rule 98 submissions.

    With respect to the list of witnesses we intend to call, at Monday's hearing Mr Griffiths suggested - somewhere in the transcript I recall reading it - that we might be in a position to comply by the end of May with this requirement.

    I think we would be in a position to do so, to give a list of the witnesses we intend to call by the end of May, with the caveat that we have filed yesterday a motion before your Honours seeking protective measures for certain categories of witnesses and, subject to the outcome of that motion, it is noteworthy that most of the names on the list of our witnesses might very well be listed under pseudonyms to the extent that your Honours grant that application.

    That brings us to subsection (a) of (iii), "The name or pseudonym of each witness". I state in this respect again that we should be able to comply by the end of May.

    With respect to subsection (b) of (iii), "A summary of the facts on which each witness will testify", I also think we will be able to comply with that by the end of May.

    The same would hold through for subsection (c), "The points in the indictment as to which each witness will testify", and likewise subsection (d) as to "The estimated length of time required for each witness".

    The area where we will have difficulty would be the list of exhibits in the sense that the volume of documents we have to digest and process, in particular those being obtained through witnesses we are currently speaking to and witnesses we expect to speak with through 29 May when our team will conclude most of its work in the field - I am speaking of the lawyers now in Freetown and elsewhere - it will be very difficult for us to put together a very comprehensive list of exhibits at any time before some time in June, almost around the time of the Defence conference, and so that would be a significant burden on us.

    I am not speaking of exhibits that necessarily may apply to the testimony of particular witnesses. I am just talking of a straight delineation of all the exhibits we intend to introduce. That poses particular difficulties for us at this point.

    So those would be my indications about what we can produce and when we can produce them vis-a-vis the requirements of Rule 73 ter. Thank you.

  • Thank you, Mr Anyah. Ms Hollis?

  • Mr President, we appreciate the information provided by the Defence and we certainly take no issue with the comments that have been made by the Defence, including the timing of the provision of materials pursuant to that sub rule (B).

    In terms of the list of documents, we also appreciate the difficulties the Defence are having and the resources they are expending and we have no issue with that.

    We would make one request and that is that on Monday lead Defence counsel spoke to you about taking time with the accused about his testimony and also about the very numerous exhibits which would be admitted through the accused. I believe that this was on page 24212 of the transcript.

    Given in mind that the Defence we would take from those comments must have in mind some of the exhibits at least they will use with their first witness, the accused, we would ask that notice of those exhibits be given at the very earliest possible moment so that the Prosecution would be able to prepare for the first witness whose testimony would begin around 29 June, one would anticipate.

    In addition to that the Prosecution would ask that the Trial Chamber also exercise its discretion, which is provided to it under sub rule (B), to order the Defence to provide the Trial Chamber and the Prosecutor - we would ask simply that they provide the Prosecutor - with copies of the written statements of each witness the Defence intends to call at the time they would call the witness for direct examination. We say this keeping in mind that, in our view, the Defence will act in good faith and give us a very concise and comprehensive summary of what the witness will testify to.

    We do not believe that that would infringe on any rights to the accused in that the witness is being called to testify, so it is no longer privileged, and any statements they may have given would then become relevant in terms of testing the evidence of the witness and weighing the credibility of the witness. So we would ask for that.

    In addition, we would ask that at the pre-Defence conference the Defence indicate what experts it may intend to call and give information relating to the areas of expertise in that regard.

    Those would be the only additional comments that the Prosecution would have.

  • Yes, thank you, Ms Hollis. Yes, Mr Anyah?

  • It would seem that with leave of Chamber if I could respond it might expedite matters to the three specific issues raised by Ms Hollis. With respect to exhibits that may be used in conjunction with Mr Taylor's testimony, Mr Griffiths has made public statements - and I believe before your Honours as well - that Mr Taylor will likely be on the witness stand for several weeks. Mr Taylor has sat through the proceedings for a significant length of time and will exercise his right under Rule 85 (C) to be heard. That will take some time.

    Your Honours will appreciate the fact that at the beginning of this case when the new Defence team was appointed we were in possession of several boxes of documents, specifically the documental archives of Mr Taylor, and at the time the figure of boxes we had was somewhere about 18 to 20.

    Even if, your Honours, we were to eliminate some of those documents, the bulk of the exhibits in our case will actually come through the accused and it's a significant number, so asking us to delineate the specific exhibits that we will use in conjunction with Mr Taylor's testimony we submit is the same as asking us to give you a comprehensive list of our exhibits. In sum and substance, that is the effect that doing so would have.

    As I have said previously, this is one particular aspect of Rule 73 ter that poses a significant problem for us. I cannot in good faith say when exactly we will be able to comply. Of course we would be subject to any orders your Honours pronounce.

    With respect to the second issue about copies of written statements, the law of the Special Court controls this issue I would submit. It is in the rare case that the Prosecution is entitled to receive the statements of witnesses. It is not in Rule 73 ter. It gives your Honours discretionary authority to order it, but the presumption is that they will receive summaries of a witness's statement.

    The principal case on this issue is the Norman et al case and the standard enunciated there is a twofold standard. The Prosecution actually has to demonstrate by a prima facie standard that it would either face undue or irreparable prejudice should it not receive statements made by Defence witnesses. The decision on that case was given on 21 February 2006, Prosecutor v Norman et al, the case number SCSL-0114T.

    It is not a matter of right that enures the Prosecution to receive Defence witness statements. There is no correlative rule vis-a-vis the reciprocal disclosure provisions calling for the Prosecution to disclose witness statements to the Defence. There is no correlative rule asking the Defence to do the same with respect to the Prosecution. So in order for them to receive the statements, your Honours, they have to make the showing. It is not for us to disclose those statements without them making the appropriate showing.

    With respect to the last point raised by counsel I think in conjunction with the pre-Defence conference and the list of expert witnesses, Rule 94 bis lays the bare minimum of 21 days within which we are to tender the statement of experts and the matter or field of expertise that they will be testifying about. That is the barest minimum.

    The rule does say the earliest as is possible, your Honours have to presume we are acting in good faith and to the extent we are able to do so we will do so in the earliest possible manner as called for by the rule, but there is a floor in that rule - I mean as in F-L-O-O-R - vis-a-vis the deadline when we are to comply with its requirements and that is 21 days before the witness is called to give evidence. It doesn't have to be at the pre-Defence conference. It could very well be in the middle of the Defence case. So that is my submission in respect to that request by learned counsel opposite.

  • All right, thank you.

  • Mr President, may I just clarify one matter? It does relate to the rule itself.

  • Rule 94 bis, talking about expert witnesses, doesn't say they don't have to give the name of the expert witness. It says the statement of the expert witness should be given 21 days before they would testify. There is nothing in there to indicate that the name doesn't have to be given before that date. Thank you, Mr President.

  • Thank you. Just so that I've got the present position of the parties clear, the bulk of the Rule 73 ter requirements mentioned by Mr Anyah - and there were a few exceptions, but the bulk mentioned by Mr Anyah - the Defence anticipates it could produce by the end of May. Is that correct?

  • That is what Mr Griffiths indicated on Monday and it is what I indicate today. That's correct.

  • And while you are on your feet, Mr Anyah, Mr Griffiths also indicated on Monday that he would be quite happy with a pre-Defence conference taking place on or about 8 June and I gather that is still the Defence position, is it?

  • It is, Mr President, subject to the reservations I attempted to make this morning that we have reflected on things and we have consulted with Mr Taylor. If we were to make that submission today I doubt that Mr Griffiths would request 8 June, but logically counting backwards from 29 June, when your Honours have set for our case to commence, our hands are essentially tied because that leaves only about three weeks before our case commences. Perhaps an ideal point might be two weeks before the commencement of our case. That has given us an additional extra week from 8 June to have the pre-Defence conference.

  • All right. Just before we deliberate, Ms Hollis, the production of the matters mentioned by Mr Anyah, or most of them - we are not talking about the list of exhibits now, but most of them - he anticipates the end of May. Would that be a suitable date for you?

  • Yes, Mr President, it certainly would. We would also note that in relation to exhibits he said that the Defence would not be able to put together - it would be difficult for them to put together a very comprehensive list of exhibits at any time before some time in June, almost around the time of the Defence conference, and so he has also addressed that timing issue.

  • Well, we need to deliberate and I had in mind, but I will discuss this with my colleagues, that perhaps the production of a list of exhibits could be scheduled for later than production of the other matters; for instance scheduled for the pre-Defence conference itself.

    I might add here that the Trial Chamber is quite aware that the Defence have filed a protective measures motion and obviously that motion is going to need to be decided before other items are ordered to be produced by the Defence, because obviously the Defence will need to know whether it has to produce the names or just the pseudonyms of the witnesses and so that is a matter we will take into account as well. Just pardon me for one moment.

  • [The Trial Chamber conferred]

    Mr Anyah, I'm sorry, if you are taking essential instructions now I will not interrupt and I will give you time, but if those instructions can wait for a few moments. We are just about to adjourn and draft up some orders, but before we do there are just two questions we need you to answer, if you can. The first one is what is the anticipated length of the Defence case?

  • Initially, before the core members of our team went to West Africa to actually undertake some field work, we thought our case would be quite expedited.

    Now that we have been on the ground, and bearing in mind the recent decision by the Appeals Chamber on 1 May 2009 in respect of the joint criminal enterprise issue, the number of witnesses that we anticipated calling has grown significantly. Mr Griffiths I believe in public statements and elsewhere had suggested that we were considering somewhere in the vicinity of 75 or so witnesses, but as I stand before your Honours I can say that that number has perhaps grown by as much as 50 per cent and so we are looking at the vicinity of 100 or so witnesses that we are considering. So the length of our case if you extrapolate from that and given the previous estimate of somewhere around nine months, or six to nine months, the length of our case may very well extend up to a year.

  • Yes, all right, thank you. The second question is I am quite sure you are aware of Rule 84 under which each party may make an opening statement. It's not obligatory on the Defence, but are you able to indicate at this stage that when the Defence case does open there will in fact be a Defence opening statement?

  • May I consult with Mr Taylor about that?

  • Thank you for accommodating my request to consult with our client. Yes, I am in a position to say that we will be giving an opening statement prior to the opening of the Defence case.

  • All right, thank you, Mr Anyah. Well, we are going to just briefly adjourn and we will come back with some orders.

  • [Break taken at 10.15 a.m.]

  • [Upon resuming at 11.15 a.m.]

  • Having heard the oral submissions of the parties and considering Articles 17(4) (b) and (c) of the Statute and Rule 73 ter of the Rules of Procedure and Evidence, the Trial Chamber orders as follows:

    1. Order for expedited filing. The Prosecution must file a response, if any, to the Defence's urgent Defence application for protective measures for witnesses and non-public materials which was filed on 6 May on or before close of business on Tuesday, 12 May 2009. The Defence must file a reply, if any, by close of business on Friday, 15 May 2009.

    2. The Defence shall file the following materials on or before close of business on Friday, 29 May 2009:

    (1) A list of witnesses the Defence intends to call, including the names or pseudonyms of each witness;

    (2) A summary of facts on which each witness will testify;

    (3) The points in the indictment as to which each witness will testify;

    (4) The estimated length of time required for each witness;

    (5) A list of the names of any expert witnesses and their areas of expertise.

    Order 3. The pre-Defence conference pursuant to Rule 73 ter is set down for 9.30 a.m. on Monday, 8 June 2009.

    Order 4. The Defence shall file a list of exhibits the Defence intends to tender, stating where possible whether or not the Prosecution has any objections as to authenticity, on or before the pre-Defence conference on 8 June 2009.

    It can be seen from these orders that the Trial Chamber has rejected the Prosecution's request for the Defence to provide the Prosecution with copies of each statement of the witness the Defence intends to call at the time the Defence calls the witness on direct examination.

    The basis for this decision is the Trial Chamber's decision in the AFRC case on 11 July 2006 at pages 115 and pages 116, where the Trial Chamber held that there is no blanket right for the Prosecution to see the Defence statement of a Defence witness. The Prosecution has the power only to apply for disclosure of a statement after the witness has testified with the Trial Chamber retaining the discretion to make a decision based on the particular circumstances of the case at hand.

    Well having found that, unless the parties have any further matters to raise we adjourn this case to the pre-Defence conference on Monday, 8 June 2009 at 9.30 a.m.

  • [Whereupon the hearing adjourned at 11.20 a.m. to be reconvened on Monday, 8 June 2009 at 9.30 a.m.]