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. We will take appearances, please.

  • Good morning, Mr President, your Honours, opposing counsel. This morning for the Prosecution, Brenda J Hollis, Nicolas Koumjian, Kathryn Howarth, and our case manager, Maja Dimitrova.

  • Thank you. Yes, Mr Griffiths.

  • Good morning, Mr President, your Honours, counsel opposite. For the Defence today, myself Courtenay Griffiths, with me my learned friends Mr Morris Anyah and Mr Terry Munyard. Also with us today, Mr Michael Herz and our case manager Ms Salla Moilanen.

  • There is an application - or should I say two applications - which I would like to make this morning orally.

    What you see here is what was provided to us at 12 minutes past - at 3.30 on Friday.

  • I'm sorry, when you say "what you see here" - oh, in front of you there.

  • All of this was disclosed to us at 3.30 on Friday and we are told --

  • Mr Griffiths, don't you think you should describe "this" on the record?

  • We are talking about five lever arch files. In addition, we have the material disclosed to us during the cross-examination of Mr Koumjian. That's another lever arch file plus the initial disclosure. So in total we now have some 165 documents which were disclosed to us by 3.30 on Friday afternoon.

    Now, upon receipt of the one set of documents, which was not provided to us in electronic format, my case manager, Ms Moilanen, attempted to photocopy them. Unfortunately, the photocopier in the Defence office was not working. She inquired from Court Management whether or not it would be possible to have them reproduced and was told that could not be done. So consequently, copies have not been made and have not been provided, either to me or to Mr Taylor or, indeed, any other member of my staff apart from our case manager, who received it.

    Now, the context in which I make this application, Mr President, is this: In our submission, the Office of the Prosecution by this disclosure concedes that on one interpretation, as demonstrated on Thursday of last week when Mr Koumjian sought to deploy certain documents, ostensibly purely for impeachment purposes, when we discovered that almost all of those documents sought to be used could also be probative of the guilt of the accused.

    Now, there is nothing surprising here, since the borderline between cross-examination as to credit and cross-examination on issues that may be probative of guilt is difficult, if not impossible, to determine. We demonstrated that, we submit, on Thursday last, and your Honours were perforce required to indicate to Mr Koumjian that all of the - almost all of the documents he sought to be - introduce fell into both categories delineated by your Honours in your decision of last week.

    Now, we having come to this stage, in our submission, before any document can be used we must address whether, first of all, it is in the interests of justice that the document be used; secondly, that it does not violate the fair trial rights of the accused, bearing in mind also given the volume of the material now disclosed, that this Court is enjoined by Rule 89 to always have in mind the spirit of the statute and the general principles of law to be applied in this tribunal; and furthermore, this Court is also enjoined by Rule 90(F) to avoid the wasting of time.

    As an indication of how, in our submission, time will be wasted, let me give your Honours an example of one of the documents disclosed on Friday afternoon. It's a declaration by Mia Farrow, the actress, following a telephone conversation she had with Mr Koumjian, in which - and that conversation took place in August of this year - in which that Hollywood actress claims that Mr Taylor caused a diamond to be given to her whilst in South Africa. That is an indication of the quality of the material this man is now supposed to be dealing with when all of this is dumped on him at the last minute.

    Now, in our submission, bearing in mind all of these principles, bearing in mind also the unfulfilled expectation expressed by your Honours at paragraph 22 of your decision in anticipation of being in a position to make specific orders relevant to the documents sought to be used, it seems to us a most efficient and helpful use of the Court's time for your Honours now to be provided with all of the documents given to us so that the expected and necessary judicial supervision can be applied. This would have the advantage, in our submission, that all parties would know where they stand and the trial could proceed expeditiously.

    So the first application I make is that the proceedings be adjourned today to give your Honours time to consider all of this material, because in our submission, assessing each document as it is presented in evidence will be time consuming and affect the smooth running of the trial and would also prevent the prejudice caused to the accused by the stop-start nature of his cross-examination over the last four weeks.

    Now we need to bear in mind, of course, that this is the first tranche of documents. Full disclosure will not be concluded until close of business tomorrow, so we anticipate receiving even more documents. The question I ask is this: How is the accused and his lawyers supposed to assimilate all of this material whilst he is in Court from 9.30 to 4.30 every day, along with his lawyers, being cross-examined? How is he supposed to do that? How are we supposed to advise him in these circumstances?

    By way of example, suppose these documents taken in toto totally undermines the defence put forward by the defendant? We, as his lawyers, in the circumstances would be professionally obliged to advise him, for example, to reconsider his plea. We would be professionally required to do that. How are we going to do that if we do not have, to quote the statute, "Adequate time and facilities for the preparation of his defence and to communicate with his counsel of his or her own choosing", how is he supposed to exercise that right?

    Because in our submission, your Honours - and I say this quite bluntly - the Prosecution have totally lost sight of the guarantees provided to an accused by Article 17. They have already sought to ignore his access to legal advice. They have also sought to ignore his right to be provided in detail with the nature and content of the case against him. Now they are seeking to ignore, in our submission, his right to have adequate time and facilities to prepare his defence.

    We need, in this regard, to contrast the situation during his examination-in-chief when we were required by order of this Court to provide the Prosecution with copies of documents we intended to rely upon two weeks before they were due to be used, and in our case, in a couple of days, we have been presented with this. In our submission, it's just not fair.

    So the two requests we make are these: Firstly - and I make no apology for making this request, because, in our submission, it's prompted by the cavalier attitude displayed by the Prosecution towards this accused's rights under Article 17. So I am firstly asking for an adjournment and that this cross-examination should not continue until the new year.

    So I am asking that we be given the remainder of this week and also the recess in order to properly assimilate this material, advise the accused as to his rights so that the guarantees provided to him under Article 17 are properly recognised.

    Now, before I sit down, could I make one correction. I am told that the diamond in South Africa was actually given to the model Naomi Campbell, but this was reported to Mr Koumjian in that telephone conversation by Mia Farrow.

    Mr President, that is my application.

  • Just before you sit down, Mr Griffiths, we have taken note of all your submissions, but you said you had two applications. Now, if I am not wrong, the applications are: Firstly, you are applying for an adjournment to consider all of this material; and, secondly, that adjournment - I will withdraw that.

    You are applying for an adjournment to consider all of this material. You are asking that - the Court to call for the material, to consider it and to exercise some judicial control; and finally, you are asking that the accused and Defence be given the rest of this week and the recess to assimilate all of this material.

  • It really comes down to two things, Mr President: Firstly, the adjournment until the new year; secondly, that your Honours be provided with all the material we have been given so that your Honours can properly consider the documents and decide, firstly, which category they fall into; and secondly, if it is the second category, what use can be made of it.

    It may be premature at this stage to be considering issues of admissibility, but I note that in the second part of your Honours' decision, use and admissibility is made and/or, and so it seems that the initial question is can the documents be used bearing in mind, firstly, the interest of justice and, secondly, whether or not such use would violate the fair trial rights of the accused?

    So we submit that your Honours should be in a position to make that decision in the round to avoid the kind of hiccups we had last week where a document is presented, then there is a hiatus whilst we consider issues surrounding it, and in our submission, it's unfair to the accused for his cross-examination to be proceeding in that way. Better if we come back, in our submission, in January, knowing precisely what documents the Prosecution can use and for what purpose. In our submission, that would aid both sides and the smooth running of the case. That's application number one.

    The second application is merely the application for the adjournment.

  • Yes, that's clear now. Thank you, Mr Griffiths. I assume the Prosecution wishes to reply to those applications.

  • Thank you, Mr President. Yes, we do. First of all, the disclosure of the documents which are being disclosed is not a concession by the Prosecution that indeed they fall under (ii), because our reading of the decision that your Honours placed before us, both (i) and (ii), in connection with the explanatory paragraph 27 is that documents or material that we intended to use for the purposes of impeachment only need not be disclosed. The great majority - the overwhelming majority of the material we intend to use will be for impeachment only, so we do not concede a disclosure obligation.

    To ensure that we complied with your Honours' interpretation of your decision we disclosed all of the material but not because we believed that it actually was other than material under (i), material intended for the sole purpose of impeachment which does not require disclosure. Nonetheless, we have disclosed it.

    In terms of the Defence argument that the line between the use of evidence for credit and the use of evidence for guilt is very difficult, if not impossible, to determine must be rejected even in jury trials because even when you are not before professional judges evidence may be offered and accepted and used for a limited purpose. And we have made it very clear that the overwhelming majority of the material we seek to use is for the limited purpose of impeachment. There are no cute little games that we intend to play. If it is for the purpose of guilt, the proper procedure will be followed and notice will be given, as notice was given on Friday to the Defence of which materials we intended to use today and tomorrow among all the materials that were disclosed and of those which, if any, were intended to - we would ask the purpose also be to prove guilt.

    And the Mia Farrow affidavit was the one instance that we would use to prove guilt as well, or ask your Honours to consider for guilt as well. So it is not only possible, it is often done in trials, especially before judge alone, professional judges, that material is used and clearly identified for a particular purpose. So there is nothing difficult about that.

    In terms of wasting of time, we have attempted to move forward efficiently and certainly we do not wish to waste time.

    In terms of the quality of materials that have been provided, that is for your Honours to determine either at the time of admission where you would find they are not relevant or, the other appropriate test, have not been met or at the time you consider all of the evidence. So speaking of the quality of material at this point is immature.

    In terms of the argument about the Defence's ability to advise their client, if the Defence is totally undermined because the Prosecution evidence shows that the accused has not testified truthfully before you, that is not a denial of a right to a fair trial. Even an accused doesn't have a right to come forward and testify untruthfully. So materials used for impeachment, first of all there is no right to give legal advice on those and, secondly, it certainly would not undermine the accused's fair trial rights if he has chosen to testify untruthfully and the impeachment materials show the lack of truthfulness of his testimony.

    The Prosecution has done anything but act in a cavalier manner. We reject that. We find it is unfounded and unfair. We have attempted very diligently to comply both with what we understood your decisions to be and then what we learned subsequently your decisions were meant to involve, if we did not understand this.

    In terms of providing your Honours with all of the material that we disclosed, we are most happy to do that. We are most happy to do that. Now, as to the potential use of that, of course, that will depend upon how it is used in cross-examination and any arguments that would be put forward. But in terms of providing your Honours with that material, you are professional judges; just as with the Defence MFIs, if ultimately you do not admit them into evidence, you simply disregard them. So we are happy to provide that to your Honours if your Honours wish it. We do not know that it is necessary, but, if your Honours wish it, we are very happy to do that and we find it no violation of any procedural or other rights or procedures.

    In terms of an adjournment to consider the materials, the Defence will be getting materials that we intend to ask you to consider for guilt as well as the vast majority of materials that we only intend to ask you to consider for impeachment. If the Defence needs the time to talk to their client about those which we will ask you to consider for guilt, not those which hypothetically may be probative of guilt, then of course that is something that they should have the right to do.

    But we do want to point out to your Honours our position is that it doesn't matter what hypothetical uses material may be put to. If the party using the material asks you to limit consideration of that material to a particular use, then what scenario are you faced with? Either the imposing party will say don't just use it for impeachment, also use it to consider guilt. We don't think that will happen. Or your Honours independently will determine that you wish to use it as probative of guilt even though we are asking you only to consider it for impeachment. That is of course within your prerogative but we find that unlikely as well.

    So we do not believe there is this huge amount of material that the Defence will have to advise their client on because there is only a very small amount of that material which we will be asking your Honours to consider for purposes of proof of guilt. The overwhelming majority we will be asking your Honours to consider only insofar as it impeaches the 7,200 plus pages of direct examination and/or the some 300 documents that have been marked for identification.

    So the bottom line after all those comments is: Should your Honours wish the material, we are most happy to provide it to you. And should the Defence feel it needs this time to discuss and give legal advice relating to documents which we will have clearly identified that we will seek your Honours to consider for guilt, then of course that is within their rights and it's up to your Honours' discretion. Those are our submissions, Mr President.

  • Just before you sit down, we have been told by the Defence that up until Friday, Friday afternoon, they have been served with 165 documents. How many more documents are you going to serve on them?

  • I cannot give you an accurate number but there are a substantial number of documents and these documents, as I indicated, will be used for matters that arise out of this accused's 13 weeks, 7,200 page direct examination and the some 300 documents that have been marked for identification. But I am bad at estimates, I don't want to give you an estimate, but there will be a substantial additional number. They will all be disclosed as of close of business tomorrow as per the direction of your Honours.

  • Thank you, Ms Hollis. Well, do you wish to reply to that response, Mr Griffiths?

  • Just to say this, Mr President: In our submission, my learned friend's argument betrays the real difficulty now faced by this Court because it seems to us it's really not for a party to proceedings to be the ultimate decision-maker as to which category documents fall into. In our submission, that is a judicial decision and it is not for my learned friend to say that hypothetical considerations are unimportant, when in the same breath she concedes that it may well be open to your Honour in due course to use the additional matters included in those documents of your own volition in support of guilt.

    Now, in our submission, if there is - and by the argument my learned friend is conceding that the documents can be used, if only hypothetically, for more than one purpose, why are we being provided with those parts which hypothetically could be proof of guilt and which she concedes in due course your Honours may well decide to rely upon in proof of guilt?

    Bearing in mind the very fine line here between the two categories, it seems to us that it's for your Honours to make that decision, not for the Prosecution. And it seems to us that your Honours should be given sufficient time to discharge, in our submission, that important judicial function. That's all I say in reply.

  • All right. Thank you. We are going to have to adjourn --

  • [Trial Chamber conferred]

  • Mr Griffiths, I just seek clarification from you. On Thursday last when we adjourned, the Defence, if I recall properly, asked for an adjournment till Monday to consider that batch of financial documents that had been disclosed on Thursday with a view that you would have been ready today to proceed with the trial in respect of those documents, just the financial documents.

  • We are in a position to proceed on just the financial documents, although there is a submission I would make in respect of one part of it.

  • So when we are going to retire to deliberate on your applications, we just wanted clarification, are you prepared to continue this trial this week at least in relation to the financial documents?

  • And that would be fine with the Prosecution as well?

  • We are going to have to go off the Bench. We are not sure how long we will be, but we will let everybody know when we are ready to come back on with a decision on the applications that have been made this morning.

    Mr Taylor, no need for you to sit there waiting for us. You can leave the courtroom and we will send word to you when we are ready to come back.

  • [Break taken at 10.00 a.m.]

  • [Upon resuming at 12.01 p.m.]

  • Before the Trial Chamber are two applications by the Defence. Firstly, the Defence seeks an adjournment until the new year in relation to the material served on it by the Prosecution which the Prosecution intends to use in cross-examination of the accused. The Defence points out that up to 3.30 p.m. last Friday, a total of 165 documents were served on them. We note also, the Prosecution advised today, that there are a substantial number of documents still to be served. Furthermore, the Trial Chamber has seen in Court the lever arch files containing the documents already served on the Defence and they are indeed voluminous.

    Secondly, the Defence applies for an order that all the material served on the Defence by the Prosecution be also provided to the Bench so that judicial supervision can be applied in deciding which documents fall into category 1 and which documents fall into category 2 of the Trial Chamber's decision dated 30 November 2009.

    At the outset, the Trial Chamber wishes to state that it is surprised to hear the Prosecution today is still misunderstanding the Trial Chamber's order of 30 November 2009. The disclosure obligation of category 2 documents is based on the content - I emphasise that word content - of the documents and not, as the Prosecution seems to think, the intended purpose for which the Prosecution wishes to use the documents.

    Neither of the Defence applications is opposed by the Prosecution.

    Moreover, in view of the volume of documents served on the Defence, the Trial Chamber considers that the Defence's first application for an adjournment until the new year is reasonable and is granted accordingly, that is, upon completion of today's proceedings.

    As regards the Defence's second application, the Trial Chamber orders as follows: (1) that the Prosecution provide the Trial Chamber with all material referred to earlier which has been or will be served on the Defence; (2) in order to render the volume of material manageable and to save time that the Prosecution indicate both to the Bench and to the Defence on each document, firstly, which passage or passages will be used to impeach the credibility of the accused and, secondly, which passage or passages will be used to prove the guilt of the accused; (3) in light of order 2 and also in light of the volume of material that we have seen in Court today and the material yet to be served, we extend the time limit for disclosure of these documents to close of business Friday, 11 December.

    Now we will proceed with the matter concerning the bank statements. I think that's your matter, Mr Koumjian.

  • Yes.

  • Mr Taylor, just before you are asked further questions, I'll remind you that you are still bound by your oath to tell the truth.