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

  • Good morning, Mr Werner.

  • Good morning, your Honours. Good morning Defence opposite. For the Prosecution this morning, Nicholas Koumjian, Christopher Santora, Maja Dimitrova, Nathan Quick and myself Alain Werner.

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.30 a.m.]

  • Thank you. Mr Anyah?

  • Good morning, Madam President, your Honours, counsel opposite. For the Defence we have Terry Munyard and myself Morris Anyah.

  • And I trust Mr Munyard is fully recovered. I see there is no witness on the stand, Mr Werner.

  • Yes, your Honour, the next witness is TF1-173 and we need to make an application concerning the protective measures. That is the reason why there was no witness on the stand.

  • So we are in the same scenario as TF1-459 and 122. This witness is covered by pre-trial protective measures decisions and as the case before it's pre-joinder decisions. In the case, the three cases, it's Prosecutor versus Sesay, 23 May 2003, Prosecutor versus Kallon, 23 May 2003, and Prosecutor versus Gbao, 10 October 2003.

    Now we have spoken with this witness and he wants to go open. So again we are applying to rescind the protective measures and, as the cases before, we would like to rescind the protective measures attributed to this witness and being recited at paragraph (b) which basically are names and any other identifying information concerning all witnesses be sealed by the Registry, (c), which is in and out of court pseudonym and (e) which is non-disclosure of name and other information to public or media.

  • I am just looking at the list that you have given us, Mr Werner. That is recession of the name, identifying data and the pseudonym. Well, the name/pseudonym are basically the same. Was there any other protective measures for this witness? There was a reference from our legal officer to a screen, is that incorrect?

  • Yes, it is. Our understanding is that that was the protective measures for this witness. That were discovered by this decision. That were the protective measures for this witness.

  • [Microphone not activated].

    THE WITNESS. Yes, Your Honour.

  • Mr Anyah, have you any response to that application?

  • Yes, Madam President. As is consistent with our practice we naturally do not oppose recission at a general level, but your Honours will recall we have in the past, specifically last week, objected to rescission based on measures granted on this 23 May 2003 decision, so we stand by that principle. I do believe perhaps on Friday we have filed something in respect of this issue, but I have not seen any circulation from CMS yet. So in principle we do not object to rescission, but we do not waive our right to challenge a previous decision of this Court.

  • Did you say this witness was previously protected in three different decisions or only one?

  • Well, your Honour, there were three pre-joinder decisions and as you know that was the whole discussion; there was no list with this witness's TF number. There was one decision in each case before the beginning of the trial. So that was the reason why I gave you the three cases.

  • So the answer to my question is yes?

  • Yes, your Honour.

  • Well, Justice Sebutinde, if it please your Honours, if I understood counsel correctly he is suggesting that there were three pre-joinder decisions. When this issue arose last week we were made privy to only one decision, that was the decision of 23 May 2003. The additional documents that were circulated by the Prosecution on the day in question were their motion which led to that decision and that motion was dated 7 April 2003. If the suggestion now is that there were designated Judges of each Trial Chamber issuing pre-trial decisions that were consolidated into one pre-trial protective measures decision, then I am at a loss as to what the procedural history is here.

    All I know is, and the suggestion seems to be, that the measures being rescinded purportedly arise from the decision of 23 May 2003 and if that is the case our position remains unchanged in respect of that decision.

  • I think all three decisions are 23 May 2003.

  • Your Honours, maybe I can assist on that. There is two decisions on the same day, 23 May 2003, Prosecutor versus Sesay and Kallon. The decision concerning Gbao was 10 October 2003. My learned friend Mr Santora when he applied for TF1-459 for recision to that witness mentioned these three decisions expressly. And that was pre-joinder, so it was never consolidated.

  • I have a decision on the matter of Prosecutor versus Sesay dated 23 May 2003 and for purposes of record and clarity I'm going to read out what the protective measures are at (b), (c), (e) and I think you said (k), Mr Werner. I am looking at the record here before me.

  • Yes, I see (k) written down.

  • Probably it's my French accent. I said (b),

  • (c) and (e).

  • Very well. It is the (k) that is confusing me. (b) is that the names and other identifying information concerning witnesses be sealed. (c) is that the Prosecution may designate a pseudonym for each witness and that is to be used in pre-trial disclosure and (e) is that the names and other identifying data and information on file with the Registry, et cetera, shall not be disclosed to the public and the media, et cetera. Very well, we are clear on that.

  • [Trial Chamber conferred]

    By a majority, Justice Sebutinde dissenting, we grant the application to rescind the protective measures (b), (c) and (e) in the relevant decisions as cited by counsel for the Prosecution.

  • Madam President, it would assist us and we would be grateful to receive some clarification perhaps from counsel opposite. It is unclear to me which of the three decisions cited by counsel, I am referring to 23 May 2003 Sesay decision, the 23 May 2003 Kallon decision and the 10 October 2003 Gbao decision - of which of those three does the Prosecution purport that the protective measures for this witness were granted, because that invariably impacts what I believe we have filed on Friday, which is in relation only to the 23 May 2003 Sesay decision that was put before this Chamber and of which a copy was given to us when this issue initially arose in connection with TF1-065.

  • Your Honour, for this witness, all three of them. That is the answer.

  • My understanding, Mr Anyah, is that pre-trial decisions were made prior to Sesay, Kallon and Gbao being joined, and that they were in the same terms and applied - although we don't have a list - to the same witnesses. And then there was, subsequently, yet another decision made on 5 July 2004 after the joinder of the three cases. If my interpretation is incorrect, or my understanding is incorrect then it can be corrected.

  • Just for curiosity, Mr Werner, now that you have these three pre-trial decisions how do you decide which witnesses are protected by which decision?

  • Your Honour, the distinction is that if the statement was given before the decision then we consider that it is covered. The statement of the witness, because, as you remember, there were no lists and that was the issue.

  • Yes, but surely there has to be some way of putting the other side on notice, and the Court on notice, so that everybody knows which witnesses pertain to which decision. As matters stand, this is knowledge that is only within your possession as OTP.

  • That is the reason why for each witness we are explaining and giving the position of the Prosecution for each witness.

  • In other words, you pick and choose.

  • Well, again, I rise merely to seek further clarification because Justice Sebutinde's question raises the additional issue of what occurred before the Chamber last week, which is in respect of TF1-065. We certainly appreciate your Honours have ruled, we are not seeking to go behind the decision, we just seek clarification.

    In respect of that witness the Prosecution put forth before this Chamber only one of the two decisions that was rendered on 23 May. That is not to say perhaps Mr Santora, learned counsel opposite, did not mention all three orally. The one that was relied on in open court, of which copies were circulated to your Honours and to the Defence Bar, was the one in respect of Issa Hassan Sesay, not the one in respect of Morris Kallon. So apparently of two decisions both rendered on 23 May 2003 they unilaterally elected one of those two to propose that that was the basis for the protective measures granted to TF1-065.

    Today before your Honours counsel is heard to be saying that so long as a witness's statement predates a decision, that is the controlling factor vis-a-vis which decision is proposed as being the relevant decision in question.

    Well, last week they had two decisions from which they could have proceeded and they proceeded on the basis of the one pertaining to Issa Hassan Sesay. This invariably has impacted our approach procedurally to this issue.

    Your Honours will soon receive circulation from CMS something that was filed on Friday last. The matter is sub judice since it has been filed, but at an appropriate time on the basis of what has been said in Court we may make an application to amend what has been filed.

  • Your Honour, we believe the application mentioned in this case, the application mentioned the three decisions. The three decisions are identical to the other three. I have them here. They are the same decisions. We believe orally it was made clear that the three decisions were referred to.

  • I would just like to make this comment. Is it necessary to waste all of this time talking about the present case when the witness says he doesn't want any protective measures. The Prosecution, who originally obtained the protective measures for him supposedly says that they no longer need to apply. As far as the Defence is concerned, the rights of the accused are not in the slightest way affected.

    So can't we save all this debate for contested issues rather than this one? You are not committing yourself to anything by simply agreeing on this basis. This case is by consent, there is no issue at all, really, and you are not committing yourself to anything by simply going along with the Court order. You can distinguish these cases by consent from contested issues and they are the ones that we should be wasting the time over - spending the time on rather than wasting time here.

  • If your Honour would grant me leave to just respond why we are emphasising these particular points.

    I made this indication to your Honours last week when the issue initially arose. The concern here isn't the particular witness before your Honours; the concern which undergoes all these arguments is that today the Prosecution comes before your Honours seeking recision on the basis of an order. Tomorrow they may very well come before your Honours seeking to uphold protective measures on the basis of the same order. That is of concern.

  • That is why I am saying when that happens that will be a defended application and we can go seriously into the arguments involved, but is it necessary to do that here?

  • I appreciate your Honour's point and we stand admonished as to the preferred procedure.

  • Perhaps you are being a bit severe on yourself. I didn't mean to admonish you and in fact that was just my own view. I don't even have the agreement of my colleagues on that. I am just trying to save some time. That's all, Mr Anyah.

  • That's right. That was Justice Lussick's personal views.

  • Please call the witness.

  • Before the witness is called, can I make this point.

    This is a witness who Mr Griffiths has carriage of, to use the language of the Court. He, like me, has been affected by transport difficulties this morning. The difference between us is obvious; I managed to get us here in the nick of time. He is still delayed. He will be here by the time of the mid-morning break.

    I raise this simply so that the Court knows that I will be covering for him while the witness gives evidence-in-chief. I don't know how long the witness will be in chief, it is entirely a matter for my learned friends opposite, but I simply wanted you to know that it will be him who will be taking the witness in cross-examination, if any, when that time arises.

    I am informing the Court and my learned friends opposite as a matter of courtesy.

  • Thank you for that the information.

  • Can I also thank the Court for your concern as to my recovery which is close to be complete.

  • Yes, your Honour. So the next witness will be TF1-073. He is going to testify in the Kono language and is a Christian. I do not expect my examination-in-chief to be very long. But I think it's one of the first times we are using the Kono interpreters and I will try to go slowly. That is the only indication I can give.

  • Are the Kono interpreters in place?

  • The interpreters are in place, Mr Werner and possibly you can also request your witness to speak slowly.

  • I will, your Honour.