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

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

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

  • [Open session]

  • [The accused present]

  • [Upon commencing at 10.03 a.m.]

  • Good morning, Madam President, your Honours, counsel opposite. For the Defence this morning we have myself Terry Munyard, Silas Chekera, Logan Hambrick, our case manage Salla Moilanen and our legal assistant Fatiah Balfas who is one of the longest serving members of the team and is leaving us at the end of this week. So this is the last time the Court will see Ms Balfas and we are very grateful indeed for all the hard work and dedication she has given to the team for actually longer than any of the rest of us bar, I think, Ms Hambrick and Mr Anyah.

  • Thank you for those comments, Mr Munyard, and we do wish Ms Balfas all the best in the future.

    Now, as you know, this is a status conference at which we examine the status of things at least for the foreseeable future.

    We know that there are, as of today, four pending motions from the Defence, fairly sizeable motions, that I reckon will take us - will take the judges through the recess in deciding once the pleadings have closed of course.

    The other matter, of course, we would like to hear from the Defence is your way forward as of today.

  • Yes, Madam President. Can I assist by addressing three issues: The question of any outstanding live witnesses; the motions is the second issue; and the third issue is the question of disclosure by the Prosecution. They of course have a continuing obligation of disclosure.

    As far as live witnesses are concerned, the Defence position is as it was on the previous occasion when I addressed the Court - the previous status conference - that --

  • Could you remind us again exactly.

  • Certainly. Very unlikely, in our estimation, that we will call any further live evidence, but - and I am really echoing one of his Honour Justice Lussick's comments on the last occasion - we can't rule it out until we have the Court's decisions on our outstanding motions. And so I emphasise that it is still unlikely. I am not suggesting that we have got anybody in the wings that we are likely to call upon. That is not the case. But I do not rule it out at this stage, given that there are a number of, as yet, unresolved matters. So that's the position on live witnesses.

    As far as the motions are concerned, we did race against the clock last week and we got the motions in in the nick of time. We have actually spotted one or two minor errors and filed corrections this morning. So I hope those loose ends will now have been tidied up. And at this stage, we don't anticipate having to put anything else in writing before the Court.

    Madam President, with respect, I agree with your assessment, that the motions, the pleadings, the procedures and the size of the motions, mean that it is unlikely that the Court will have reached decisions by the time we finish our two-week recess on 11 October.

    As far as the third matter is concerned, the continuing obligation of the Prosecution in relation to disclosure, in particular of Rule 68 material, we note the reasoning in your Honours' decision handed down on Thursday afternoon in writing in relation to witness DCT-097. In particular, but not exclusively, paragraph 11 of that decision, and it is our submission that the Court has now clarified the meaning of exculpatory material and the duty of the Prosecution. And the Court's decision, in our submission, establishes a different standard from that sought by the Prosecution in the pleadings in relation to that motion. And it is our submission that the Prosecution ought now to review their disclosure, in particular, of either payments or benefits in kind given to potential Defence witnesses, that is to say Defence witnesses of whom they were notified in our witness lists, and to go back, now that they have the Court's decision on the 097 motion - to go back and review all those potential witnesses and disclose to us any payments or benefits in kind that they made to potential Defence witnesses. And we would invite the Prosecution to do that during the period of the recess.

    That is all I need to say at the moment on that matter. It seems to us, therefore, Madam President, that there will need to be a status conference - there will need to be a status conference after the recess, but I query whether you would want a status conference on the first day back, as it were. Of course, we are entirely in the hands of the Court on that but much will turn on your own deliberations and the time that you will need to deliberate on the motions.

    Can I just add one other thing, and make it absolutely clear? When I talked about the Prosecution's continuing obligation to disclose, as clarified by your decision of last Thursday, these are potential - I am talking about potential Defence witnesses who were also treated as potential Prosecution witnesses by the Prosecution before they ever became potential Defence witnesses. In other words, people in the same category as witness DCT-097.

  • Mr Munyard, may I inquire why you have not filed a formal motion where these disclosures are concerned?

  • Madam President, there is a reason in principle and also a reason in practice. The reason in principle is that it is the Prosecution's continuing duty to disclose that information to us. It does not, on the face of it, require a motion from the Defence. That's the reason in principle.

    There is also a practical issue here. We did not receive your written decision clarifying the meaning of exculpatory evidence in relation to such potential witnesses until Thursday afternoon. But, be that as it may, the principle still remains that this is a matter for the Prosecution to review. They had - and it was only on Thursday afternoon that they had, for the first time, in writing, the Court's own interpretation of their obligations to disclose in relation to exculpatory material of this nature, and so they have had very little time, indeed, to review the category of witnesses that I am talking about, and we would not have expected them between Thursday afternoon and Friday at 5 o'clock to have suddenly come up with a list of - or with further disclosure. We appreciate that they need time to look at that and to carry out their obligation.

    It is only if, in our view, they do not carry out their obligations with sufficient and reasonable time to do so, that we would then, in our view, be required to put in a written motion to the Court. I hope that clarifies our position, Madam President.

    Those are my submissions, if there is anything else before I sit down that I can clarify, I am obviously happy to do so.

  • Thank you, Mr Munyard. That will be fine.

    Ms Hollis, would you wish to respond to any of the points raised, please?

  • Thank you, Madam President. Madam President, in relation to potential Defence witnesses and that they don't know, maybe they have and maybe they don't, we suggest that simply is not good enough. It has been 19 months almost since the Prosecution closed its case. It has been over 14 months since the Defence began its case. They have had access to the accused to determine who should be called since the very first day they came on this case three years ago. If they don't know by today who they need to call to address substantive issues, we suggest they are not going to know. And to leave this case open indefinitely while they continue to decide, we suggest is not proper trial management, it is not in the interests of justice, and it certainly is not part of any right of any accused. So we suggest that is not a proper basis to continue to keep this case open.

    In relation to the Defence motions. As your Honour pointed out, four motions were filed on 24th, only one motion was filed prior to that. And of the four motions that were filed on the 24th, three of them were filed at 16:57, at 19:38 when the Prosecution still happened to be in its offices, a person from CMS came to our office and asked if we would accept the last filing and, of course, since we were there, we did accept the last filing. So we received these at the very end of the day on Friday.

    Now, nonetheless, we do want to move things forward in this case so that we can have an end to the Defence case. We anticipate we will be able to file responses to three of the four this week. We will work very hard to see if we cannot, in fact, file responses to all of them. It may be, however, that we are only able to file responses to three of the four. Should that be the case, we will file the response to the fourth motion immediately next week, hopefully, no later than close of business on Monday, and the reason that we have to wait for some of these motions is to get information from Freetown.

    So we will move very rapidly to file responses to these motions well in advance of the time that we would be allotted. We ask that your Honours impose an expedited reply schedule on the Defence, giving them between 24 and 48 hours to file any reply they might have, so that your Honours will be able to decide these motions, hopefully, during this supposed recess, or very shortly thereafter.

    In relation to disclosure, the Prosecution has made disclosure based on its understanding of the disclosure rule and the jurisprudence on that disclosure. We will certainly take into account your Honours' decision of last week to see if that requires any additional disclosure on our part.

    In relation to looking at this decision and applying it to all Defence witnesses, please keep in mind that the Defence filed a list of 250 some witnesses. We don't have the names of most of those witnesses. So at best --

  • Sorry to interrupt, Ms Hollis, but my understanding of Mr Munyard's submission was this applied only to potential Defence witnesses who happened to be potential Prosecution witnesses and not to all witnesses of the Defence, and if I am incorrect in that interpretation Mr Munyard will indicate. So my understanding is that it is a little more limited than all Defence witnesses.

  • That is our understanding of what Mr Munyard said. We have yet to formulate our opinion on that - the language of your Honours' decision. But my point was, we don't know if all of these 250 some were at one time potential Prosecution witnesses, because we don't have their names. So we certainly, if we agree with that interpretation, we will check the known Defence witnesses against our list because we certainly intend to comply with your Honours' ruling as to what Rule 68 is. We did not challenge that ruling, and we intend to comply with it. But that is the point I am making in relation to all of the Defence witnesses. The great majority, we have no idea who they are, so we are unable to check. We do ask your Honours to set an end date to the Defence case, even if it is conditional. We think it is beyond time for that to happen. They do not have a right to an open-ended case and we ask that your Honours take action to set a date. And as I said, we will work very diligently to ensure that we provide our responses very --

  • Ms Hollis, do you mean another date because the Court did set such a date.

  • Well, Madam President, with respect, our understanding was that that date was arrived at based on an estimate of how long it would take to complete examination of seven witnesses. It was not a date that was given, no matter what happens in court, the Defence case may remain open until 12 November. Rather, it was premised purely on how long it would take to call the seven witnesses the Defence indicated to you they would call, based on their estimates of how long it would take them to examine these witnesses and then other estimates relating to cross-examination, re-direct. So it was not an open date for anything that may occur but, rather, premised solely on seven witnesses that now we have heard will likely not be called. And, again, in relation to this "we may or may not call witnesses", we suggest that is too vague, too late and we ask that your Honours not keep the case open with this very vague possibility 14 months after the Defence has opened their case. Thank you, Madam President.

  • Madam President, may I respond just to clarify a couple of matters?

  • We are not talking about all potential Defence witnesses. Justice Doherty's characterisation of my argument is correct. We are talking about people whose names have already been disclosed to the Prosecution. And, indeed, if need be, we can assist the Prosecution by indicating again the names of those who we think fall into that category.

    Then going back to Ms Hollis's first point, which really links in with her last point, the Defence have no desire to keep this case running indefinitely. And there is no suggestion, on our part, that we are going to keep it running indefinitely.

    The Court will set a date today for the next status conference. That was what you, Madam President, indicated on the last occasion. And we are as anxious as anyone to make sure that the case is concluded expeditiously. But I have said all along, over the last three occasions, I think - three including today - that it is very unlikely that we will call any more live evidence, but for reasons that I have given on previous occasions and repeated today, we can't rule it out until all of the pleadings and all of the decisions of the Court are to hand. It would be, in our view, professionally verging on the professionally negligent to close the door now before we know the outcome of the Court's decisions on the motions.

    Moving on, then, to those motions, there is, in law, no basis for ordering expedited response times. The Court is going to be in vacation for two weeks, albeit everybody knows that the parties and the Court itself, the judges and the Court staff, will maintain a number of people still working throughout the vacation, and that in itself is a degree of sacrifice and expedition on the part of the parties and the Court, the fact that people are going to be required to work through their vacation. And so, in our submission, the Prosecution have made out no basis in law for expedited filings. There is no reason in fact for expedited filings, and we do anticipate closing the case within the time that the Court previously indicated.

    Now, the date of 12 November may have been fixed bearing certain matters in mind, but I think it is unfortunate that we should be criticised for reducing the number of witnesses that we were going to call, thereby saving not only the Court and the parties a great deal of time but also a vast amount of public expense. I hope we are not going to be criticised or penalised in any way for having achieved that. And so I would ask the Court to set a sensible and practical timetable, not to drag the case out a day longer than is necessary but to do justice to the Defence case by setting an appropriate date for the next status conference, the usual timetable for filings, and we can then all review the position by the time of the next status conference. The date of that is entirely, we would submit, in your Honours' hands, and we have no submissions on precisely when it should be, apart from what I said earlier.

    Again, unless there are any matters on which I can assist further, those are my submissions.

  • We will confer now.

  • [Trial Chamber conferred]

  • We will retire momentarily to deliberate on the issues raised between the parties and hope that I will come back with some rulings on these matters. It shouldn't be more than half an hour. Thank you. Court adjourns.

  • [Break taken at 10.25 a.m.]

  • [Upon resuming at 10.56 a.m.]

  • After deliberation, these are the rulings of the Court on the various issues raised by the parties.

    Firstly, on the issue of the pending motions, whilst we appreciate the submissions by the Prosecution that they will make every effort to file timely responses, when we looked at the calendar actually, the date given by Ms Hollis, the date of Monday the 4th would be exactly 10 days after receiving the motions, or the last motion anyway. And so, looking at it mathematically, basically that would not be an expedited response if you were to file your response by Monday, 4 October. That is not to say that you may not file earlier but basically, in our view, we are not really saving any time and so we reckon that it is not fair, if we have not expedited the filings of the response, to expedite the filings of the Defence replies which are a mere five days from receipt of the response, so we decline to expedite the filings of the replies.

    Now if we go by the calendar, that would mean that if the last response is filed on Monday, October 4, that should give the Defence five days within which to file their last reply. And I am not saying that you could not file earlier, of course you can file earlier, and I believe and trust that the parties are acting in the interests of expediting the trial and don't need to be reminded. Then that would definitely bring us to the end of the recess. That would be the end of the recess on Monday the 11th.

    Now, we are giving the judges some time to deliberate on whatever pending motions there may be by the 11th and to give a decision and then to allow the Defence time to consider the decision we have given and to see how they then plan to go forward after that decision.

    So we are going to set a date for the next status conference on Friday, 22 October. This date we reckon will give everybody sufficient time to carefully consider the decisions of the Chamber on the pending motions and to consider the way forward.

    Now at that status conference we intend to hear submissions from the parties on formal closure of the Defence case. This of course will include with finality the issue of any witnesses that you still intend to call. We really will not hopefully hear the kind of submissions you have been giving, Mr Munyard. We hope that by this time the Defence will have decided, because this is the time we are going to set a formal date for closure. When I say set, it's actually going to be a revision of the date that was set earlier because, as the Prosecution rightly pointed out this morning, that date of 12 November was set with certain events in mind; that is, the calling of seven witnesses. Now, those events did not happen, or have been overtaken by events, other events, and so we need to revise that date of 12 November one way or the other, and we hope to do it on the date of 22 October.

    Again, on that date, in addition to setting a closure date for the Defence case, we will nominate, or we will hear - we will hear submissions on time limits for filing the final briefs of the parties and for closing arguments and incidental matters, and we will set dates for all of those issues on that date.

    Now, unless there are any other matters, I am going to adjourn the proceedings to Friday, 22 October at 10 o'clock in the morning, and to wish everybody a restful but fruitful judicial recess. Thank you.

  • [Whereupon the hearing adjourned at 11.02 a.m. to be reconvened on Friday, 22 October 2010 at 10.00 a.m.]