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

  • Good morning, Mr Witness.

  • Yesterday afternoon before Court adjourned, we were considering a transcript of evidence dated 2 December 2008, and we stopped at page number 21493, and I ask Madam Court Manager if that page could be pull up again, please. Thank you.

    Mr Witness, I read from the previous page 24 - 21492 yesterday until this page, and I had not concluded asking you questions about what I had read. First of all, let me read some of it again and then I'll proceed to ask you questions.

    At line 3 there is a question that was posed to Dauda Fornie. The question was - well, Dauda Fornie gave his response to a question posed, and his response, starting at line 3, was:

    "A. Well, within the RUF it was not everybody who had the

    authority to just go on the Liberian net and call. Some

    operators had the authority. It was not every substation

    that had that authority. Some stations had the authority

    to communicate directly to the Liberian side.

    Q. Specifically at Base 1?

    A. Yes, like Base 1. The late Sellay had that authority.

    Nya too had that authority. Alfred Brown had that

    authority. I had that authority. Tiger - almost every

    radio operator that was assigned to Mosquito's station.

    Every radio operator that was assigned to Mosquito's radio

    station had the authority to contact Base 1 directly."

    Let's pause. I asked you previously, Mr Witness, if you knew someone called CO Nya. I also asked you previously if you knew someone called Foday Lansana. There is a reference here by Dauda Fornie to someone called Nya in the context of radio operators who had the authority to contact Base 1 directly. During the time period when you were stationed at Base 1, did you ever receive radio communication from Sierra Leone, from the RUF, from someone called Nya?

  • No.

  • How about from somebody called Alfred Brown?

  • I don't know Alfred Brown. I don't know Nya.

  • Was it the case when you were assigned at Base 1 that every radio operator assigned to Sam Bockarie's radio station had the authority to contact Base 1 directly?

  • This authority that you are referring to, Mr Anyah, from whence came the authority? And, if it didn't come from the Liberians, how would this witness know what the RUF had authorised?

  • Well, the answer to the first question --

  • Well, let's hear from the witness, please.

  • Yes, your Honour.

  • Okay. When I said no, it means that during the time of communication between Base 1 and Bravo Zulu 4/Planet there were specific operators at Bravo Zulu 4 that Base 1 dealt with in terms of radio communication between Bravo Zulu 4 and Base 1 or between - or from Sam Bockarie and Benjamin Yeaten. That is, Sellay, who Base 1 earlier dealt with, and then Mortiga.

  • Mr Witness, you are not answering my question. Where did the authority come from that you're referring to?

  • Okay. Let me just make this clear. There was no rule or authority actually given to Base 1 that these are the people that you should deal with in accordance to the set rules. But during that operation, the Base 1 operators were satisfied or sure of those three operators that they were operators for Sam Bockarie. So, beside those three operators, they were not pleased or satisfied or sure of these operators that who claimed to be Sam Bockarie's operators were actually Sam Bockarie operators.

  • Your Honours, could the witness be asked to slow down and repeat from where I stopped.

  • You are going too fast, Mr Witness. You are going too fast. Slow down a little bit and finish your explanation.

  • Okay. I said there was no given rule or no given authority to Base 1, so to speak, that these are the radio operators that you should deal with, or these are the radio operators that you should not deal with in the RUF. But Base 1 operators themselves, to be on the safer side, in order to avoid giving information to the wrong person on the RUF side, they themselves decided that they will deal with only three operators that they knew and whose names were given to them firstly by Jungle, like Sellay, and then, after Sellay, the next person that came up was - were Daf and Mortiga. But besides these three guys, other operators who claimed to be calling from Bravo Zulu 4 or Planet 1, Base 1 never gave them information or Base 1 never discussed detailed information with them, even though they would come in and then connect Base 1 and say that they are calling from Bravo Zulu 4, but Base 1 operators would tell them, "I either want to deal with Daf or Mortiga." That, "I want to deal with Daf", or, "I want to deal with Mortiga."

  • I think I am understanding you. Are you saying that there was no official order relating to authority, it was simply that your operators decided that there were only three RUF operators that you would deal with. Is that correct?

  • Yes, from the Base 1 side. But whether this authority was given to the RUF side, then the operators at Base 1 did not know. But from the Base 1 side, the operators at Base 1 were sure of Mortiga, Daf and Sellay as Sam Bockarie's operators.

  • Mr Anyah, the question that you put to the witness was actually a quotation out of the evidence of a Prosecution witness.

  • Who, in his evidence, stated that the authority was limited to certain RUF operators and not everybody had access.

  • So this is the question you are now putting to the witness to corroborate or deny?

  • That is exactly the case, Madam President.

  • And, Mr Witness, although you said there were no clear restrictions from the Base 1 side, and you were not aware of instructions given on the RUF side vis-a-vis who should be able to communicate with Base 1, my question has to do with the fact of whether you communicated with certain RUF radio operators.

    See, this witness, Dauda Fornie, told the Court that only certain RUF radio operators from their side had the authority to contact Base 1 directly. Dauda Fornie then went on to give us some of the names of those operators who had that authority. This is, according to Dauda Fornie, what he knew about the RUF operations. All I need to know from you is on your side of the equation at Base 1, taking, for example, the name Nya, did you ever receive a call at Base 1 from someone called Nya?

  • No.

  • How about Alfred Brown?

  • And continuing with the transcript of Dauda Fornie, I was trying to find a reference from yesterday when I read the evidence of TF1-585 because that Prosecution witness actually stated that it was Sam Bockarie who placed limitations on who could call Base 1, and I think we covered some of that yesterday when I read that witness's evidence. I will attempt to find it. I think - well, I will come back to that.

    Now, Mr Witness, continuing with Dauda Fornie's evidence, page number 21494 from December 2, 2008. You will recall, Mr Witness, I read to you a transcript yesterday where Dauda Fornie said that he could recognise the voice of Sunlight. Do you recall me reading that to you yesterday?

  • Yes.

  • Incidentally, let me ask you this question: Could the operators at Base 1, after you had been in communication with Buedu, Planet 1/Bravo Zulu 4 over a period of time - could the Base 1 operators recognise or identify the voice of each of the operators on the other side that you were allowed to talk to?

  • Yes, Base 1 could recognise the voices of those operators that they dealt with from Bravo Zulu 4.

  • Take Sellay, for example. Could Sunlight distinguish between Sellay's voice and the voice of Daf, for example?

  • Yes, at the time Sunlight could distinguish the voice of Daf from that of the voice of Mortiga or any other person that he was dealing with.

  • Now, how about recognising the difference between the voice of Daf and Mortiga. Could Sunlight make that distinction while at Base 1?

  • Thank you. Now page 21494, starting at line number 9. A question was posed to Dauda Fornie:

    "Q. Now you said before the break that you, at one point,

    started recording some of the radio transmissions, the RUF

    radio transmissions. Is that correct?

    A. Yes.

    Q. Do you recall approximately when you started recording

    some of these?

    A. The RUF radio conversations were after 6 January in

    Freetown when RUF attacked Freetown. It was after 6

    January that I did the recordings.

    Q. And what did you do with these recordings?

    A. I kept the recordings for my personal records, to

    serve as personal reference for myself."

    And then counsel for the Prosecution asked that a clip, an audio clip, be played for the courtroom. We see at line 28 that the clip was played and I can say to the Court that this clip was ultimately admitted into evidence as Prosecution's exhibit P-261.

    Madam Court Manager, with leave of your Honours, may I ask that we play that clip at this time.

  • [Audio clip played to the Court]

  • We are going to have it played again because a number of us did not hear what was said.

  • [Audio clip played to the Court]

  • Madam President, if I may just be heard. The problem is actually with the audio because, when you read the transcript of 2 December, there are about 15 pages of questions back and forth from your Honours with Prosecution counsel about how you could understand the audio, and they still applied and had it admitted. So if you look at the transcript of December 2, indeed Justice Lussick suggested a way in which it could be more audible, and that is actually to reduce the volume and the comments by Justice Lussick to the audio quality was at page - or is at page, 21504 of the transcript of 2 December 2008. And Justice Lussick said, "Just as a matter of interest, I found that when I turned the volume down I could understand what was being said. I think the recording was just played too loud and it distorted the reception. But when I said I could understand what was being said, I could hear the words clearly but I think they were in Krio." So I think it is more audible when the volume is lower actually than higher, but.

  • Well I can tell you one thing, speaking for my own self, when the volume was down I couldn't hear a thing; when the volume was up I couldn't hear a thing. And worse still, I think the people were speaking in a language that I don't understand. Other people say it is Krio, I am none the wiser, but nonetheless the witness is here. Please go ahead.

  • Thank you, Madam President.

  • Now, Mr Witness, we just played that clip, let me read you what Dauda Fornie told the Court when they played this clip. This is at 21495, the transcript of 2 December, line 2:

    "Q. Who are the voices on that recording?

    A. The first voice was the late Foday Sankoh's. That was

    the late Foday Sankoh's voice. And Mosquito's voice is on

    that and Sunlight's voice is on it."

    Now, Prosecution counsel asked that the clip be played again. The clip is played and then there are exchanges between the Court, Mr Santora, Mr Munyard, and it goes on for several pages, all about the quality of this clip, but we leave those for a moment and we come to page 21500, page 21500. Dauda Fornie was asked when this recording took place, at line 12:

    "Q. Do you recall approximately when this recording


    A. It was around February to March - around February to

    March 1999. Around February to March 1999. That was after

    the Freetown invasion on January 6 by the RUF."

    Then more questions from the Court regarding - from Judge Sebutinde regarding whether or not there was a transcript with the recording. And counsel for the Prosecution said they were only relying on the witness's evidence and the recording together. No transcript.

    We then go to page 21504, line 29. There is a question asked of Mr Fornie:

    "Q. Now, Mr Witness, you have already said that you

    recognise - and we go over to the next page - the voices on

    this recording. And who are the voices again?

    A. The first voice was talking something around the lines

    like 'I'm not getting you clearly', that he was not getting

    the transmission clearly. That's what he was talking.

    That voice is the Lion, that is, Foday Sankoh. The second

    voice was Sunlight, who intercepted and he was saying,

    '35 Bravo, come in. Come in, 35 Bravo' that was Sunlight.

    The third voice that spoke was Mosquito's and he said 'my

    man, stand by' and Sunlight continued talking. Sorry,

    Sunlight continued talking. He said 'you can't remember

    what you and my father' - or something like that, around

    those lines. He said 'what you and my father spoke just

    now, or what you and I spoke'. You know, they were talking

    in Liberian English, I can cannot quote exactly but they

    were talking around those lines.

    And the last speaker was CO Isaac. The last speaker was CO

    Isaac, Isaac Mongor.

    Q. Mr Witness, I'm not going to ask you particularly about

    the contents of this, but you said earlier that you at

    times recorded radio transmissions. Is that correct?

    A. Yes.

    Q. You said you started recording these after the Freetown

    invasion of January 1999. Is that correct?

    A. Yes."

    Then if we were to go to the next page, page 21506, Mr Fornie indicates at line 11 that after the recordings were made, that he kept them for himself. And he was asked:

    "Q. How long did you keep them?

    A. Those cassettes were with me. Even now I have some of

    the cassettes, even now I still have some of those recorded


    Q. Did you ever turn these cassettes over to anyone?

    A. Yes, I turned them over, these cassettes - some of

    these cassettes - to the investigators of, the Prosecution

    investigators who were taking preliminary statements from

    me. It was to them that I turned these cassettes over."

    Well, Mr Witness, with the indulgence of your Honours, just so there is no mistake, I want to ask that the tape be played again before I ask the witness questions about it.

  • Yes, I think that is a good idea.

  • [Audio clip played to the Court]

  • Mr Witness, did you hear the audio tape that was played?

  • Do you recognise any of the voices that we heard on that audio tape?

  • No.

  • Did you understand any of what was being said on that audio tape?

  • What did you understand?

  • First of all, I heard two different accents on the radio, that is, the Sierra Leonean accent and that of the Liberian accent. For the Sierra Leonean accent, I don't know who was speaking, who said that, "I am not getting you loud and clear" and for the Liberian accent, the individual who said, "35 Bravo, come in" you know, what - you and I spoke, getting on fine, okay, that voice is not the voice of Sunlight, as the witness stated. That voice is not the voice of Sunlight. And Sunlight never referred to Buedu as 3-5B since the start of communication with 3-5B, I mean, sorry, with Buedu. The beginning of communication with Buedu, the first code that Sunlight used during that time was the code Sellay, which was the code name for Sellay that Jungle told Sunlight that the operator was Sellay. He called Buedu as Sellay. "Sellay come in, Sellay come in to Base 1." And, after all, before the end of that communication, the code, the call sign for Buedu, was then given to Sunlight and, from that time, up until 2000 - I'm sorry, up to 1999, late 1999 - Sunlight was using the code either Planet 1 or Bravo Zulu 4. Sunlight never used the code 3-5B.

  • Mr Witness, the audio appears to have been saying 35 Bravo, at least that's what is on the transcript of record from Dauda Foday's interpretation of this audio tape. Did Sunlight ever use that sign, 35 Bravo, to call Buedu?

  • Sunlight never used that call sign, 35 Bravo, to call Buedu.

  • Mr Witness, you said you heard two different accents. Dauda Fornie spoke of more than two people speaking on this audio tape. He said the first voice was Foday Sankoh; the second voice was Sunlight; the third voice was Mosquito; and the last voice was CO Isaac. That is four different voices on this audio. Now, have you had an occasion previously to hear Sam Bockarie's voice on an audio tape or over the radio?

  • I have heard Sam Bockarie's voice over the radio - over the BBC before.

  • Are you in a position to recognise Sam Bockarie's voice if you heard it again?

  • If I heard it on the radio I think I can recognise it.

  • Given what you heard from the audio clip that we just played, did you hear anything in that clip that sounded like Sam Bockarie's voice to you?

  • Just before you leave that topic, Mr Anyah.

    Mr Witness, you said that the person saying, referring to 35 Bravo was not Sunlight. Did you recognise who it was?

  • I don't know who the person is. I don't know who the person was.

  • Was that the person you were referring to, who had a Liberian accent?

  • Yes, your Honour. The person who said "3-5B, come in, come in." He had a Liberian accent.

  • So that's a Liberian operator and you couldn't identify his voice. Is that correct?

  • It is a Liberian voice but I don't know whether he was operating from Liberia, but he spoke in Liberian accent. He spoke like a Liberian. That person spoke like a Liberian.

  • Mr Witness, did you not say, was it not your evidence towards the beginning of your evidence, that the RUF radio, from the period 1991 to '92 was code named 35 Bravo, or 35B?

  • Yes, I said I was told by previous operators that the RUF code between 1991 and 1992 was 3-5B. I said that, your Honour.

  • Yes?

  • Yes, I said that, but what I am saying is that when Base 1 started its communication with Buedu, Base 1 never used a call sign 3-5B. At first it was Sellay. Secondly, and continuously, it was either Planet 1 or Bravo Zulu 4. No operators at Base 1 ever used a call sign 3-5B or 35 Bravo.

  • Mr Witness, that Liberian voice, or the person with the Liberian accent, do you recognise that voice to be the voice of any Government of Liberia radio operator?

  • No.

  • Do you know the location where that person who spoke with the Liberian accent was speaking from?

  • I do not know who the person is, so I do not know where he was speaking from.

  • Also, Mr Witness, in your opinion, having listened to the audio, how many individuals do you think are speaking on that audio? How many different voices did you hear?

  • From what I heard on this recording, I heard two voices. That is, one, the person who called saying, "35 Bravo, come in. 35 Bravo, come in." He said, "My man, you know what we are speaking about. I said try and get on fine." That is voice number one. And the person saying that, "I am not getting you clearly. I am not getting you clearly," and at last the person who was saying, "I can't get you clearly. I can't get you clearly. Okay," and later, it is like he said, "My man, please stand by. Listen," that was the second voice in the Sierra Leonean accent. So two voices are recognised from this audio clip.

  • Mr Witness, Mr Fornie told the Court that this was sometime after January of 1999 or thereabouts, that was when this recording was made. Do you know whether Foday Sankoh was a free man around February or March 1999?

  • Now, let us continue with Mr Fornie's evidence. May we go to page 21516. Actually, one last question about that audio clip, Mr Witness. The voice that you said was the voice of a Liberian, or, rather, a voice that had a Liberian accent, was that the voice of either Dew or Romeo Tango?

  • No. That voice was not the voice of Dew, nor was it the voice of Romeo Tango.

  • Thank you, Mr Witness. May we go to page 21516, please. The question was posed to Mr Fornie. This is at line number 15:

    "Q. Now, I'm going to ask you about some of these trips

    specifically. You've already described one trip for the

    Court. Do you recall your second trip to Monrovia?

    A. Yes. I recall part of my second trip to Monrovia. I


    Q. Can you describe for the Court that trip?

    A. Yes. The second trip I made to Monrovia was also with

    Mosquito, and on that trip I went with Mosquito and that

    was the trip that we made when - I think when I went with

    one of the code. I had to travel the code, the

    communication code, the RUF communication code, to


    Q. Why were you travelling with the RUF communication code

    to Sunlight?

    A. For him to be able to monitor communications directly

    from Sierra Leone and for him to use the code for himself

    so that he will be able to give briefings to Benjamin at

    any time when Benjamin asked him about updates from

    Sierra Leone."

    We are now on the next page, 21517. Mr Fornie continues:

    "A. And also so that at any time he came to the RUF radio

    net he would not use the Liberian voice procedure there and

    he would not use the Liberian code there. Instead, he

    would use the RUF codes on the RUF net, on the RUF radio


    Q. Who instructed you, if anyone, to give these codes to


    A. It was the overall signals commander, and that was the

    late Sellay. The late Sellay M Duwor.

    Q. Now, you've talk about codes previously. What type of

    codes are you referring to here that you gave to Sunlight?

    A. It was a communication code, radio code.

    Q. Meaning what specifically?

    A. Like in the radio code, for example, we had all the

    arms and ammunition. We wrote all the different types of

    arms and ammunition and we gave each one of them numbers to

    disguise them. For example, AK rounds, you can say X-ray

    1-2. Ambush, we might say Echo Bravo 7. Attack, we can

    say Oscar 1-1. Enemy aircraft is coming, we can say 4-4-8.

    And we also used to have nicknames that we gave to

    commanders in those codes just to disguise the actual

    identity of the particular commander or the subject matter

    that we wanted to discuss.

    Q. Now, why were you giving him these codes at this time,

    do you know?

    A. Yes, because the other codes that we had been using

    before, we changed them, and during the first visit that we

    went to Monrovia".

    And then there is an interruption there. Let's pause there for a moment. Mr Witness, Dauda Fornie is speaking of a second trip he took to Monrovia with Sam Bockarie. If we were to go to page 21519, we will find out that he says this trip occurred around the middle of 1998. At line 17 of that page, 21519, Dauda Fornie said, "Yes, we were approaching mid-98, yes, around mid-98. We were approaching mid-98." That's when he claims this trip took place, and that's when he claims he handed over the code to Sunlight. We will come to the part where he says he actually gave Sunlight the codes.

    Let me ask you this. What I've just read, Dauda Fornie said to the Court that in addition to giving you the codes - in addition to giving Base 1 the codes so that briefings could be given to Benjamin Yeaten, they also gave Base 1 the codes so that the operator Sunlight, when he came on the net, that is the RUF radio net, Sunlight would not use the Liberian voice procedure, that he would not use the Liberian code there.

    Mr Witness, while you were at Base 1, did you ever know Sunlight to go on the RUF radio network and to use Liberian voice procedure on that network?

  • Yes. When I was there - Sunlight is a Liberian. He always called - when he was calling the RUF radio, he called using his normal tone, that is the Liberian voice. That was not changed.

  • How about using the Liberian code? Because you listened to what the witness said, "So that Sunlight, he would not use the Liberian code there." Now, this is different from a person's voice. The witness is saying that on the RUF radio net, they did not want - or he did not want Sunlight to use the Liberian code there. Was there ever an occasion that you can recall when Sunlight accessed the RUF radio net and used the Liberian code?

  • I don't understand when he said "the Liberian code". But what I observed was that when Sunlight was calling on the RUF net, he used his Liberian call sign, that is Base 1. If that is what he's referring to, Sunlight used the Liberian call sign, which is Base 1, and that's it. He never changed it.

  • Yes. Forgetting call signs, this is radio communication terminology. There is a difference between call sign and code. You told us the Government of Liberia had its own radio communication code. Now, did Sunlight, to your knowledge, ever use that code or share it with those at base - at Bravo Zulu 4 or Planet 1?

  • Sunlight never shared the Liberian code with Bravo Zulu 4. Sunlight never used the Liberian code on the Sierra Leonean or the RUF net.

  • Thank you. What about these codes that Dauda Fornie gave as examples? Dauda Fornie gave as examples that arms and ammunition, for example, AK rounds, could be referred to as X-ray 1-2. Enemy aircraft could be referred to as 4-4-8. Mr Witness, was it the practice, when you were at Base 1 and communication ensued between Base 1 and Buedu, that AK rounds were referred to as X-ray 1-2?

  • No. Those codes that he is making mention of were not given to Base 1, not at all. Those codes he is making mention of were not given to Base 1. And the Government of Liberia - on the Government of Liberia radio communication net, when it comes to coding, we had categories of coding. Okay. We had the communication language that is similar to what he is trying to say. Like in a communication language, we have codes for words, like what I made mention of yesterday, like four hours long range for the VHF radio, we had a terminology of communication language which is different from the alphabetical - the phonetic alphabet. Okay. For the communication language, like, for example, attack, the word "attack" or "I am under attack", we used 15-8, 15-8. That means that I am under attack, and that is different from the alphabet. So, this form of communication was not handed to Sunlight by the RUF. This is what he's - the one that he's talking about was not handed. But the alphabet that they prepared and gave to Memuna was the only code that he received, and that code was between just Bravo Zulu 4 and Base 1.

  • Mr Witness, you have referred to a code for the word "attack" and, at least as I see it on this transcript, you said you used - I don't know if you said 1-5 but it is written 15-8. Did you say 15-8 for the word "attack"?

  • Yes.

  • Well, Dauda Fornie said for "attack" they could say something to the effect of Oscar 1-1. Are you familiar with that kind of terminology, that in lieu of saying the word "attack" the code Oscar 1-1 was used?

  • No, I am not familiar with that code and I don't know it. It is not to my knowledge.

  • Shall we go over to the next page, page 21518, please, line 7. Mr Fornie continued to explain his answer, or elaborate. He said:

    "A. We changed the code. We changed the code and then

    Sunlight requested Sellay to make sure to help him get one

    of our codes, because by then we had got the current code

    that they were using at that time. So for us to have

    smooth operation between us, that is Mosquito's station and

    Base 1.

    Q. During the time you were in Buedu about how often did

    the codes change?

    A. Sometimes two months, sometimes three months. There

    was no standardised duration for the changing of the


    Mr Witness, listen to this part carefully when the witness said, "Sunlight requested Sellay to make sure to help him get one of our codes."

    Now, this witness is giving the impression that Sunlight was pleading with Sellay, making a request, to help - that Sellay should help him get one of the RUF codes. Now let's bear in mind that the backdrop of all of this is that this is Benjamin Yeaten's station communicating with Sam Bockarie's station. Are you aware of the operators at Base 1 making a request or pleading with Sellay on the other side that Sellay should help them get the RUF codes?

  • No.

  • How again did the operators at Base 1 get a code for use in communicating with the RUF?

  • The operators at Base 1 got a code through Memunatu and that code, like I said, was a special code that was only made use of between Base 1 and Buedu. She brought it.

  • Dauda Fornie told the Court that the code in Buedu, at least when he was there, was changed sometimes two months, sometimes three months - every two months or three months. Now while you were at Base 1 was it the case that you received new codes from the RUF every two to three months?

  • No. Even when I was there the code that Sunlight received from Memunatu was never changed and they did not even send in another one and he was not notified by Sellay or Daf or anybody else that things have changed. If there was any change made, maybe they gave it to Memuna, but Sunlight did not know about it, because Memuna was now the one who was dealing with them continuously.

  • Thank you. Shall we go to the next page, page 21519, please, line 2:

    "Q. Now, did you eventually turn over these codes to


    A. Yes.

    Q. And in what form were these codes recorded?

    A. Well, it was a handwritten one. I can say it was a

    small exercise book, those small exercise books that we

    used to make or create the codes, and we used it to copy

    the codes in there. It was not a very big pamphlet and it

    was something that you can even take to the front line.

    You can even pocket it and take it to the front line. It

    was not something you needed to put into a bag, or maybe at

    the front line you might drop the bag, or maybe somebody

    will steal that away from you.

    Q. Now, back to this trip. You said this was your second

    trip to Monrovia. Is that correct?

    A. Yes.

    Q. Can you approximate when this trip occurred.

    A. Yes. We were approaching mid-98. Yes, around mid-98.

    We were approaching mid-98."

    Let's pause. Mr Witness, in mid-98 was there a radio with the call sign Base 1?

  • No.

  • In mid-1998 did you, or any other Liberian radio operator, receive a code from Dauda Fornie?

  • Where were Dew and Sunlight assigned to in mid-1998?

  • In mid-1998 Dew was assigned in Gbarnga. Sunlight was assigned in Monrovia at the Executive Mansion of the Republic of Liberia.

  • Are you aware of either of those individuals, in mid-1998, receiving the RUF radio communication codes from somebody called Daf or Dauda Fornie?

  • When you say no, does that mean you are not aware of it?

  • When I say no, it means it's not true.

  • Madam President, with leave of your Honours, there are a few matters I wish to address in private session and the reason being to protect the identity of confidential exhibits and all protected witnesses.

  • Very well. Madam Court Manager, for those reasons we will go into private session, please.

  • [At this point in the proceedings, a portion of the transcript, pages 47811 to 47848, was extracted and sealed under separate cover, as the proceeding was heard in private session.]

  • [Open session]

  • Your Honour, we are in open session.

  • Ms Hollis, please repeat that.

  • I will be handling the cross-examination of this witness and the Prosecution has an application to make, outside the presence of the witness.

  • Mr Witness, there's a matter, an administrative matter, that doesn't concern you, that we wish to handle. So you will be shown out temporarily and then we'll call you back for you to continue your evidence.

  • [In the absence of the witness]

  • Thank you, Madam President.

    Madam President, at this time the Prosecution requests that the Trial Chamber order the Defence to provide the Prosecution with all the statements of this witness. And by "statements" we mean by as defined in this Court; that is to say, interview notes, statements that have been signed or adopted by the witness, transcripts of audio or video interviews, as well as proofing notes. And the Prosecution ask for this relief for the following reasons:

    The Prosecution has been provided six summaries from this witness, the first summary having been provided on 29 May 2009.

    In the first two summaries of this witness, the Defence has indicated - has included in those summaries no statement "recorded".

    The third, fourth and fifth statements are, compared to the great majority of the - excuse me the third, fourth and fifth summaries are, compared to the great majority of summaries the Prosecution has been provided, very detailed, running over three pages, when you have a chart-type, not a portrait-type, of page. The third summary was filed on 10 July 2009, 4, 29 January 2010. The fifth 12 May 2010.

    On 23 August, at 17:55 hours, the Prosecution was provided with a sixth summary, and it was entitled an "updated summary" not a "supplemental" or "additional summary" but an "updated summary".

    23 August, of course, was the day before this witness's testimony was to begin. And, in fact, it began 24 August.

    This witness's testimony has basically been re-invented since the summary disclosed on 10 or 12 of May of this year.

    The witness's testimony to your Honours and the very general contents of the sixth summary have resolved around this witness's contacts with, communications with, personal contacts with, various RUF radio operators, Sam Bockarie, Issa Sesay, and other RUF personnel.

    This witness has told you about being in communication with RUF operators in 1998 and 1999. Those operators have included Mortiga.

    The witness has also told you about a person he was in contact with, Seibatu Jusu, that he saw at Benjamin Yeaten's house.

    The witness has told you about seeing Sam Bockarie at Benjamin Yeaten's house.

    The witness has told you about being in contact with a radio operator by the name of Sellay, and that it was both contact over the radio and personal contact, and that the witness remembered this contact with Sellay because they were both radio operators and they had been in contact.

    This information is totally contrary to what was contained in the summaries three, four and five.

    In those summaries, the witness told the Defence, if the summary is accurate, told the Defence the following things in relation to this topic.

    The witness told the Defence that he would testify he does not remember seeing Sam Bockarie around Benjamin Yeaten's house. It could have happened, but he doesn't remember that. The witness was very clear to you when he talked about Sam Bockarie at Benjamin Yeaten's house, having a meal there.

    The witness in summaries three, four, and five, said he does not know a Sellay Duwor, but the witness went on to tell the Defence that he remembers a Duwor who was part of Benjamin Yeaten's reactivated Jungle Fire unit. He doesn't tell the Defence, "I don't know a Sellay Duwor, but I know an awful lot about a Sellay."

    In the summaries three, four and five, the witness said he could scan and hear Sierra Leoneans talking on the radio but denied ever knowing or receiving RUF radio code. When he came in here, he told you much more than just listening to "Sierra Leoneans". He told you about intercepting and monitoring RUF communications and he told you about instances where he received code that was RUF code.

    Now, in relation to Memuna Deen giving him a code, he said it wasn't the general RUF code, but certainly we suggest he was saying it wasn't RUF code, totally contrary to his summaries.

    He also told the Defence all the way up to the 12 May of this year, that if RUF people knew his name it was because they all came to Monrovia with Sam Bockarie when Taylor agreed to allow Sam Bockarie to stay in Liberia as part of the peace process.

    Now, in his testimony to you, he has told you that he, personally, knew, over radio contact and in person, many people, and he has named them. So this is also contrary to summaries three, four and five.

    He specifically told the Defence he never saw Seibatu Jusu at Benjamin Yeaten's house. He specifically told the Defence he does not know Mortiga. So there has been a sea change in this witness's testimony since these summaries, the one as late as 12 May of this year.

    He also told the Defence that he will insist that no foreigners were allowed to operate Benjamin Yeaten's radio, and yet he has told your Honours that Memunatu Deen, who was a Sierra Leonean RUF, and Mortiga, were allowed to use Benjamin Yeaten's radio. Totally contrary to what he has in these summaries.

    He has also come up with a great deal of new information, some of it contained in the sixth summary we were given at 17:55 hours on 23rd, some of it not.

    The following are not included in summaries three, four and five. Nothing about SBUs. Nothing about Sam Bockarie's trips to Liberia in late 1998 or in 1999, before Sam Bockarie finally located to Liberia. Nothing about two Lebanese with Sam Bockarie on one of his trips to Liberia in 1998. Nothing about meeting Sam Bockarie at the YWCA or any other place, and that is not included in the sixth summary either. Nothing about Eddie Kanneh and Gibril Massaquoi being with Sam Bockarie on his 1998 trips to Liberia, and that is not included in the sixth summary either. Nothing at all about the communications centre in the Executive Mansion in Monrovia being moved from the fourth to the seventh floor; and nothing about secret communications from the seventh floor involving Jungle, Sampson and a person named William Jimmy. Nothing about Sampson going to Buedu and meeting Sam Bockarie's convoy on the way. Nothing about secret deals between Benjamin Yeaten and Sam Bockarie. Nothing about Benjamin Yeaten, Musa Cisse or Varmuyan Sherif giving ammunition to the RUF or that Jungle, Sampson and Zigzag Marzah are also involved in this. Nothing about Musa Cisse being part of secret deals with the RUF. Nothing about Memunatu Deen, and there's nothing about Memunatu Deen in the sixth summary. Nothing about Daf being in Togo as part of the peace process there, and there's nothing about that in the sixth summary. Nothing about meeting with Issa Sesay in Liberia; nothing about that in the sixth summary either. Nothing about visiting the RUF guesthouse, and there's nothing about that in the sixth summary either. Nothing about Benjamin Yeaten's reaction to the news of the January attack on Freetown. Nothing at all about hearing a serious confrontation between Foday Sankoh and Sam Bockarie and hearing Foday Sankoh order Issa Sesay to take charge, and nothing about that in the sixth summary either.

    Nothing about the SSS building next to White Flower and the storage of arms and ammunition and other supplies there and with Kai being in charge, and there's nothing about that in the sixth summary either. Nothing about Benjamin Yeaten going to Sierra Leone in 2000, or whenever it was he said he went, and there's nothing about that in the sixth summary either.

    Nothing about a LURD operation called Jungle Fire, not even in the sixth summary. Nothing about a change of composition of the Liberian Jungle Fire Unit when it was fighting against LURD, and there's nothing about that in the sixth summary either.

    Nothing about Sam Bockarie and those who came with him in December 1999 being given Liberian citizenship, and the sixth summary does not have that either.

    Nothing about Junior Seiatoe as a bodyguard to Sam Bockarie; nothing in fact about Sam Bockarie to the Ivory Coast, and nothing about Junior Seiatoe and Musa Cisse following Sam Bockarie to the Ivory Coast.

    And I want to be sure that I am not misleading the Court. I think I've said that there was nothing in the sixth summary about Memunatu Deen. There may be something in the sixth summary about that.

    I also think I said there was nothing about Daf being in the Togo peace negotiations. There may be something about that.

    But in general, your Honours, what we have is a witness whose testimony is totally contrary to what he had told the Defence up to 12 May of this year. In those circumstances, we think there is more than just cause for the Prosecution to be provided with all his statements, so that we can try to track this sea change in his evidence and be able to cross-examine him effectively.

    We ask that your Honours order the disclosure of all of these statements and that they order them immediately so that the Prosecution has time to review them today so that we do not have to interrupt our cross-examination of this witness.

    It is our suggestion that the Defence must have these readily available, as this is the witness on the stand, and we would ask that they be provided very quickly, and not this evening or late tonight. And that is our application, your Honours. Thank you.

  • Thank you, Ms Hollis.

    Mr Anyah, can you respond, please.

  • Thank you, Madam President.

    Madam President, our position is simple, and I will elaborate on it. Our position is that the Prosecution is in no way entitled to this witness's statement or statements. And the reasons are these.

    What is the applicable legal principle? The applicable legal principle is whether there is such undue or irreparable prejudice to the Prosecution such that it is in the interests of justice for the Prosecution to receive the witness's statement.

    Your Honours are well familiar with the case law in this area. The case law is not complicated. The case law states clearly that the Prosecution has no automatic right to a Defence witness's statement.

    During the course of the Defence's case, there have been instances, a few of them, where your Honours have ordered disclosure. Generally, there are two issues that arise in these circumstances. One is whether or not the summary disclosed to the Prosecution is sufficient. And even in regard to that particular aspect, sufficiency, there is a distinction being made between grossly insufficient and general sufficiency.

    The second aspect of the equation is whether or not there are inconsistencies, and in this regard, the inconsistencies that your Honours have considered are inconsistencies between a witness's testimony in court and the witness's summary.

    So these are the basic ground rules.

    Now, to expedite matters, can I ask for the assistance of the Court Manager to display the last summary we have given to the Prosecution on 23 August? I have a clean copy here that should be displayed, because I wish to call some matters to your Honours' attention. Can you display this, please.

    Give me a second. Given today's proceedings, I want to be sure that there is nothing here that might pose a problem vis-a-vis protected witnesses. Well, do not display it. I will read it for the Court. But I hope your Honours have a copy of it.

  • We do have copies. Yes, we all do have copies.

  • Now, the first thing I should point out, it is dated 23 August. Today is 2 September. That means the Prosecution has had this summary, which is what they are entitled to - they are not entitled to a statement - they have had this summary for over a week. The witness has been on the stand and they've had the summary. Second point, learned counsel opposite referred to five previous summaries, the last one being filed on 12 May 2010, CMS-957.

    Our position is that as far as the issue of fairness to the Prosecution is concerned, what matters most is the last summary we gave to them, whether it accurately reflects the witness's evidence, whether it accurately reflects the information we have from the witness. And in that regard, we propose that we have satisfied our obligation to them. We have provided the Prosecution with an updated summary. Nomenclature in this regard does not override substance. The fact that in our letter to the Prosecution I did not write "supplemental" or "additional summary" is irrelevant. The question that begs for an answer is whether the summary, its contents, in its totality, conveys in a comprehensive manner the totality of the witness's evidence. And that's what we've provided to the Prosecution.

  • Mr Anyah, if I may interrupt, what then is the status of the previous summaries?

  • Exactly. Counsel, in most of the submissions made, have relied on the previous summaries. What has happened in Court when there have been inconsistencies amongst the summaries? Learned counsel opposite, counsel for the Prosecution, have often attempted to impeach our witnesses by saying, "Isn't it true that in a summary filed by the Defence they have you saying such-and-such as opposed to what you've said in court?" That's the manner in which the Prosecution may make use of those prior summaries.

    If you look at the new summary we have provided, counsel said there is no reference to Jungle Fire. Well, the last line of that summary says, "Witness will also testify about Jungle Fire. It was set up by Yeaten to re-take Gbarnga in 1994 and that it was later re-activated by Yeaten to fight LURD." There is reference there to Jungle Fire. This is a very comprehensive, though succinct, yet comprehensive summary we have given them.

    Now, there is another point that is noteworthy. Counsel said our first two summaries - the first one, filed on 29 May 2009, CMS-784, and the second one, filed on 23 June 2009, CMS-793 - that there is the indication in those summaries that no statement had been recorded from the witness. All correct. What is further noteworthy in that regard is that both summaries are identical, except for the fact that the word "background" appears at the beginning of the summary for 12 June 2009. So on 29 May we file a summary, we regurgitate it exactly, repeat it and replicate it on 12 June. So the first two summaries, essentially, are one document, if you will.

    We go to summaries three, four and five, the basis for most of the Prosecution's arguments today. Summary number three was filed on 10 July 2009, CMS-809; summary number four filed on 29 January 2010, CMS-897; summary number five was filed on 12 May 2010, CMS-957. If you look at those three summaries, from July last year until May this year, everything in them is identical. They are not three different summaries. They convey the same information. And then we come to August of this year. July/August, proofing sessions are had, and we prepare a summary for the Prosecution about the witness's evidence.

    Has the Prosecution really shown any insufficiency of the summary that we have prepared and tendered to them over a week ago? They haven't. That is what we submit. There is no insufficiency regarding this summary. And even if there was, your Honours have found that the remedy for insufficiency in a summary is additional time for the Prosecution to prepare. That is what the remedy is for insufficiency. They haven't shown insufficiency.

    The next question is: Have they shown a contradiction between the summary that we gave them on 23rd of this month and the witness's testimony? They have not shown such a contradiction. Indeed, not any and all contradictions warrant the disclosure of a witness's statement to the Prosecution. It has to be a contradiction that is significant.

    Your Honours found a contradiction that was significant when DCT-179 testified. This was in March of this year. And because it was such a crucial issue, the issue there being whether or not a certain trip was taken to Voinjama at a particular time, the summary said one year and the witness's testimony gave another year for the trip, your Honours found that to be a significant contradiction and that's when you ordered disclosure of that witness's statement.

    The Prosecution, who has the onus now to show such a contradiction in this witness's testimony and the summary we gave them, they have not shown that. They cannot show that. There is no inconsistency; there is no insufficiency; they have not shown a contradiction. All the complaint is is that summaries three, four, five, which are all identical summaries, are different from the last summary.

    Well, the issue is one of interests of justice, it's one of fairness to the Prosecution. They can ask the witness, "Why did you say such-and-such to the Defence through May of this year?" They can ask that of the witness, have the witness give them an explanation. They haven't even cross-examined the witness. So what is the complaint really? You can put the summary to the witness and say, "Isn't it true you told the Defence such-and-such, and in Court you've testified this way? How do you explain yourself? We have no explanation." They want to go around the general rule that says there is no blanket right of disclosure of a witness's statement to the Prosecution. And we say in this situation the Prosecution is not entitled to disclosure, they have not met the necessary legal steps, and the witness's statement should not be disclosed.

  • We are going to retire to consider the application. It's quite detailed and there are a number of documents that have been cited that we are going to ask our legal officers to avail us with. And we'll take more or less half an hour and then we will return with our ruling, please.

    Thank you.

  • [Break taken at 12.39 p.m.]

  • [Upon resuming at 1.16 p.m.]

  • Now, the following is the ruling on the Prosecution application for disclosure of witness statements.

    The Prosecution application that the Defence now be ordered to disclose the statement or statements including transcripts, audio or visual interviews and proofing notes, of witness DCT-008, who has just concluded his testimony in chief, is on the grounds that the evidence given by the witness in chief is "totally contrary to what is contained in the witness summaries three, four and five, filed by the Defence on 10th July 1999, 29th January 2010 and 12th May 2010 respectively."

    The Chief Prosecutor proceeded to point out examples of these alleged contradictions. However, the Prosecution did not point to any contradictions between the witness's testimony and the latest witness summary filed on 23 August of this year.

    The Defence oppose the application on the grounds that the Prosecution has not shown justification for disclosure of the witness statement.

    Now, the Trial Chamber has held on numerous occasions before that there is no blanket right for the Prosecution to see the statement of a witness, a Defence witness, but that in each case the Trial Chamber retains the discretion to order such disclosure, depending on the circumstances of each case. The test for the Court to determine is whether the Prosecution has demonstrated that such undue or irreparable prejudice has been occasioned to it, that it would be in the interests of justice to order the disclosure of the statement or statements. We have also held that a summary is not meant to be a complete statement of everything that the witness will attest to, but that it must at least provide a reasonable indication, however brief, of the evidential areas to be covered by the witness in his testimony.

    In the current case, we note that the witness summaries which the Prosecution asserts contain the inconsistencies or that are contrary to the witness's testimony, are summaries that have been superseded by summary number six, filed on 23 August 2010.

    The Prosecution has not pointed to any major inconsistency between this summary and the witness's evidence-in-chief, nor have they alleged that this summary is insufficient.

    In the premises, we agree with the Defence submissions that the Prosecution submission has not satisfied the requirements for disclosure of the Defence witness statement. We also agree that any inconsistencies between the previous summaries, that is the summaries three, four and five, can simply be put to the witness in cross-examination. Accordingly, the application is dismissed.

    Now, the Prosecution have not asked for extra time to prepare based on the fact that this summary was filed rather late, but the Trial Chamber is willing to entertain such an application, if one does arise. Otherwise, that's it. We would expect to start cross-examination.

  • Madam President, the Prosecution would request, based on your ruling about the inconsistencies or contradictions, based on all of the new information that the Prosecution pointed out, the Prosecution would request quite simply that we be allowed this afternoon to finish our preparations. As soon as we did receive this latest summary, we began to work on the new areas. During testimony other new areas arose and we have been working on meeting those, but we would ask that we be allowed the rest of the day to finalise those preparations for those new areas.

  • Would the Defence object to this application?

  • We have no objection to the application.

  • The Prosecution application for an adjournment until tomorrow morning is granted, and so Court will adjourn until tomorrow morning at 9.

  • Madam President, may the witness --

  • I was wondering if your Honour wanted to caution the witness.

  • Yes. Certainly, the witness may be brought in.

  • [In the presence of the witness]

  • Now, Mr Witness, we are going to continue with your testimony in cross-examination tomorrow morning, not today, because the Prosecution has been allowed a bit of time to organise their papers, et cetera.

    So, in the meantime, you are not to discuss your evidence, this is how I normally caution you every day, and you will return tomorrow at 9 to continue with your testimony in cross-examination.

  • Yes, your Honours, Madam President.

  • The Court is adjourned until 9.

  • [Whereupon the hearing adjourned at 1.23 p.m. to be reconvened on Friday, 3 September 2010 at 9.00 a.m.]