Yes, I just wanted to seek clarification on that. There are a number of issues that are implicated in this discussion. In the first instance there's a matter sub judice before the Chamber, this very issue is pending before the Chamber.
The Prosecution I believe on 25 February filed a motion in respect of TF1-371 where in addition to seeking that exhibits which were introduced through that witness be treated as confidential they also sought a general remedy that all exhibits which are introduced in closed sessions be automatically treated as confidential, meaning only the Chamber, its staff and the parties would have access to it.
We filed a response to that motion I believe on Monday 3 March. That matter is still pending. I don't know if as of today they have filed their reply, because your Honours in a decision last week called for expedited filings on this issue. So we have circumvented procedurally the general rule that we do not raise issues that are sub judice and the Chamber in its discretion has granted them leave to do so this morning. They did not raise the issue yesterday.
A second issue that's implicated is what CMS has undertaken. CMS has now felt the pressure of this issue and on its own initiative has decided to mark as confidential exhibits which I would propose to your Honours the presumption is that they are public until otherwise ruled so by the Chamber. CMS has now classified them as confidential. There is no order from the Court directing that.
Third of all, we are now before the Chamber, no written application has been made. They prepared these exhibits before we came to court to examine this witness. I would point out that exhibit D-13 which I introduced was a Prosecution document. It was not a Defence document. That document came from their set of documents. So of the four exhibits in question, P-86, P-87, P-88 and D-13, all of them are their documents. Before they called this witness and before they introduced those documents they could have moved in writing to the Chamber that they wished to have these documents classified as confidential. They did not do so.
Then we are faced with the rules that govern these issues, Rule 69, Rule 75 and Rule 79. All of them - built into all those rules consistently is a presumption that all these documents and protective measures have to be balanced against the rights of the accused and the presumption is in favour of their public nature. It stems from Article 17(2) where Mr Taylor has the right to a public and a fair trial.
So now not only did they not move before they called the witness to have these treated confidentially, they now come and they want even documents they produced that we introduced, Defence exhibits, to be treated as confidential. We of course oppose this and the Chamber has the matter before it. We will be governed by whatever ruling is forthcoming in respect of the preceding motion and I just think it is highly inappropriate that CMS would go ahead and cave into the pressure and classify these as confidential.
Now with respect to the specific arguments as to the merits of marking these exhibits as confidential, our learned friend indicates that on P-86 and P-87 there is information that would disclose the identity of this witness. Well, my recollection of those exhibits is that there are several other names in addition to the witness's name that appear on those documents. There are signatures of others besides the witness. It would be highly unlikely that somebody, out of all of those names, would know the particular witness to which these documents pertain.
Then with respect to P-88 he refers to a signature. Well, there are two or more other signatures on that document as the Court will recall and I don't see how but for counsel mentioning that the witness's signature is one of them - I don't see how somebody would be able to discern amongst the three signatures which one pertains to this witness. So I don't see that there is any merit to this suggestion that the witness's identity is invariably and automatically disclosed once these documents are made public.
Again I would just perhaps stress that these procedures that we follow are there for a reason and when we try to circumvent them it invariably interferes with our client's rights and it does not serve the process well and I would oppose this application. I would ask that if they wished to make this application they could do so consistent with whatever decision is forthcoming from the Chamber in respect of the issue which is already pending. Now the Chamber has the discretion if it finds that a document so clearly identifies the witness and that it vitiates its prior protective measures orders, the Chamber has the discretion to order CMS to black out certain portions of a document, but again the presumption would remain in favour of its public nature. Thank you, Madam President