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

  • [Upon commencing at 2.00 p.m.]

  • Good afternoon. I'll begin by explaining that Justice Doherty is unable to come to court today owing to medical reasons, but we are expecting her to be available as from tomorrow.

    Now, yes. We will take appearances, please.

  • [Status Conference]

  • [Open session]

  • [In the presence of the Accused]

  • Good afternoon, your Honours and counsel opposite. For the Prosecution this afternoon, Brenda J Hollis, Mohamed A Bangura, Maja Dimitrova and myself, Nicholas Koumjian.

  • Good afternoon, Mr President, your Honours, counsel opposite. For the Defence this afternoon, myself, Terry Munyard, Morris Anyah, Silas Chekera, Logan Hambrick, our case manager, Salla Moilanen and today we are joined for the first time by our latest intern, Peter Mwesigwa Katonene. Mr. Katonene should have joined us about two months ago, but fell victim to various forms of bureaucracy and has only been with us for the last four weeks. But we are glad that he's got the opportunity to be in court today.

  • Yes, thank you, Mr. Munyard. And Mr. Katonene, welcome to the Trial Chamber.

    As we all know, this is a status conference charged primarily with fixing a date for the delivery of the Defence closing argument, and also for rebuttal arguments. We will stick to the agenda and the order of the agenda, and the first matter on the agenda is the Prosecution motion to substitute final trial brief. And Mr. Munyard, correct me if I'm wrong, but I understand that the Defence has no objection to the - I think the trial brief - the Prosecution substitute brief is referred to as a revised and refined final trial brief. The Defence has no objection to that being substituted; is that correct?

  • Mr President, that is correct. We support the Prosecution's motion to substitute a revised and refined version of their brief.

  • All right. Thank you. Well, we will move on to the next item now and that is submissions on whether the Trial Chamber should accept the corrigendum to the Defence final trial brief. And I understand, Mr Koumjian, that the Prosecution has no objection to that, subject to the length of the trial brief; is that correct?

  • That is correct, and also in light of the Court's ruling that portions of that brief that were filed publicly and revealed protected witnesses is now confidential.

  • Yes. Now, the third matter is the length and format of the corrected Defence final trial brief, and I think the Prosecution does not accept the appendix as being a proper appendix, inasmuch as it contains substantive arguments. Is that the Prosecution position?

  • That is correct, your Honour. In addition, in the order that your Honours gave for the final brief, your Honours set a page limit. That was overriding the practice directive which would, I believe, call for a 200-page page limit, and Your Honours' order was that the final briefs be limited to 600 pages. It would make any rule on page limits meaningless if you can simply characterise additional parts of your brief as an annex. This Court has itself previously ruled in the same way in the case filing number 209 in this file, in the Taylor trial, a decision that was issued - let's see if I have that - a decision that was issued on the Defence motion to lift redactions on identifying information of 15 core witnesses on the 21st of March 2007. Your Honours did say, in paragraph 9 of that motion, that, "In our opinion, neither annex can correctly be called by that name; they don't contain merely additional information but additional submissions."

    In both - in cases at both the ICTY and the ICTR, the Appeals Chambers have ruled in those cases that an annex or appendix to a document cannot include either legal or factual arguments. The three annexes that the Defence has are factual arguments. They are not simply transcripts from the evidence, they are not documents from the case. They are summaries that the Defence has prepared of what they say the evidence states. So in our view, they are part of the final trial brief. Your Honours gave a limit of 600 pages and the Defence has exceeded it by over 200 pages.

  • Mr. Munyard?

  • Thank you, Mr President. Mr President, your Honours, our submission is quite simply this: That the Prosecution, in their objection, seek to characterise Defence summaries of evidence prepared solely for the assistance of the Court and not in any attempt to persuade the Court one way or the other of how they should find the evidence summarised in those annexes. The Prosecution are seeking to characterise those summaries as factual arguments. They are not. An argument on the facts arises where the evidence points to - in different directions. There is evidence from a number of sources, and the one party or the other party seeks to persuade the Court that they should find a particular set of facts based on that evidence and reject other facts from that evidence. That is not what these summaries do. These summaries are no more than what they say they are, a summary of the evidence. They don't contain argument that seeks to persuade the Court to accept the evidence of some of the witnesses and reject the evidence of other witnesses. That would be an argument on the facts.

    There is no such argument on the facts contained in our annexes. They are purely and simply annexes - sorry, purely and simply summaries put in in an effort to save the Court the time of going right through all of the transcripts. And they amount to no more than that. I can't really make the point any better by repeating it.

    The practice direction on the filing of documents in Article 6 at paragraph F says:

    "Headings, footnotes and quotations count toward the word and page limit set out in the present Article. Any appendices or authorities do not count towards the page limit."

    And these appendices are no more than the summaries I've referred to. In passing, may I make this point? Mr Koumjian says that it would render a page count meaningless if the - if one party or another was to put in large numbers of appendices. It also makes the page count meaningless if vast numbers of the pages in the actual final trial brief are themselves footnotes, and you will have noted that in many of the pages of the Prosecution's final trial brief, more print on the page is footnote than text. Now, we don't take a point on that. There is an element of artificiality, however, about my learned friend's argument about our appendices making a nonsense of page limits, when their own layout of their own arguments in their final trial brief very often contains much of the argument in the small print of the footnotes. However, to go back to the main issue that the Prosecution take, they haven't pointed to any arguments of fact that we have put in those appendices and we invite the Court to say that they should stand and that they fall fairly and squarely within the terms of Article 6(F) of the practice direction.

  • All right. We'll reserve on that particular issue for the moment and move on to the next agenda item, which is the filing of written responses to the final trial briefs. And I think the first question that arises is do we, at this stage, need written responses? I'll hear from the Prosecution first on that.

  • Your Honour, our position is that the responses to the final trial brief should be oral. In the decision of the Appeals Chamber that was just handed out, they pointed out that when the Defence violated unlawfully two court orders in not filing its trial - its final trial brief as ordered, that the Prosecution was prejudiced, and they do that in paragraph 20 of the decision. Another factor that the Appeals Chamber was not aware of is that also the Prosecution, based upon the Court's scheduling for the remainder of this trial, from the Status Conference of 22 October, 2010, we have lost several of the key personnel in our trial team that would be involved in writing a response. They have left according to the plans and the schedule that your Honours had set back in October and are no longer with us. So while we certainly wish to respond to the Defence final brief and we have - in fact, I'll address this, but I think we would ask for additional time in oral argument to respond to the Defence final brief, unlike the Defence which had our brief, will have had our brief when they argue, we did not have their brief to argue during our submissions. We don't think that written submissions are appropriate. They would slow down the completion of the trial, and, based on the schedule set in October, we do not have the staff available to respond as we would like to in written fashion.

  • Mr Koumjian, where would you place the rebuttal arguments? Would you merge or marry the two?

  • Your Honours, actually, I would ask for the Prosecution to be given an opportunity before the Defence argument - this is up to your Honours and we are flexible on it - but we would ask to respond for two hours or at least an hour to the Defence final brief before the Defence arguments and then we would also address their arguments in our oral response. We would ask for two hours to respond to the Defence 550 or 850 - whichever your Honours decide about the annexes - brief, and also we would respond to their oral arguments in our rebuttal. We did not have that opportunity --

  • You want the Prosecution to have an opportunity of two hours to respond to the Defence written final trial brief before the Defence is given an opportunity to present its closing argument?

  • Yes, that would be our preference and we think that that is in the interests of trial efficiency. It would be much more efficient than the time we needed for written responses.

  • Mr. Munyard, firstly, do you agree with the submission that the written responses to the final trial brief should be oral at this stage?

  • Mr President, no, this is the first we've heard of any such suggestion. We are of the view that it would be helpful to have written responses for the reasons that I outlined back in October last year.

    Can I add this? That it would be helpful, though, before I respond in full to Mr Koumjian's suggestion, if the Prosecution could give us some sense of what - of the timetable that they are now proposing because we've had a suggestion that we abandon written responses, that they then have their two hours - I'm sorry, my throat is going along with that of many other people in the building - they are then saying they want more time. It would be helpful if we just had a rather clearer picture from the Prosecution of the precise timetable that they are putting forward. If we could have that, then I would probably be in a better position to respond to that.

  • Mr Koumjian, the way I understand your submission is that you wanted two hours' oral addresses on the Defence final trial brief before the Defence begins its closing arguments; is that correct?

  • That's correct, and then the Defence would have six hours to address their brief and ours, and then we each would have, as previously scheduled, two hours to respond. And those two hours in our view would - are appropriate to give to the Prosecution because we did not have an opportunity to address the final brief in our oral arguments as parties normally do, because of the issue of whether that brief was filed or accepted. Secondly, I'd also note that we lost about a half hour in our own arguments due to the proceedings at the beginning of - I believe it was the 8th of February, when counsel left the courtroom. So we would think two hours, I think that's very efficient to respond to an entire final trial brief in two hours. We would ask for two hours for ourselves, six hours for the Defence and then each have two hours as your Honours previously scheduled in oral responses.

  • Mr Koumjian, in reality the two hours you're asking for is in lieu of a written response, isn't it?

  • Mr. Munyard, does that answer your question?

  • I'm afraid it doesn't give us any better idea of what the period of the timetable is that the Prosecution is suggesting. But can I deal with it as it stands?

    First of all, if the Prosecution got an extra two hours to respond to our final trial brief, that would give them more hours orally but in our submission, a much more trial-efficient approach to a case as complex as this is to put in written submissions which can go into considerably more detail than oral submissions inevitably do. And it's our view that there is a great deal to be addressed that can be addressed more efficiently in writing and then simply highlighted in oral submissions, and so we would submit that the original approach that the Court took is by far the better approach, both because it enables the parties to address the arguments in more detail, and it also restores to the Prosecution the preparation time that they would have had in addressing our trial brief.

  • All right. Thank you. That's a matter we'll reserve on for the moment. And move on to the next agenda item which is the date and time for Defence closing arguments. Now, for the purposes of discussion, I would suggest Defence closing arguments on Wednesday, and rebuttal arguments on Friday. What's the Prosecution have to say about that?

  • That was exactly going to be our suggestion. This Wednesday and Friday.

  • Is that okay by you, Mr. Munyard?

  • We are talking about - are we talking about this week, your Honour?

  • It would be possible for us to do that. I know we had originally set down a timetable that included a gap between the oral submissions by both sets of parties and then the rebuttal. It would be more helpful if it were Thursday and Friday but we could do Wednesday and Friday. I should also say this: That we are now dealing with item number 5 on the agenda. If the Trial Chamber is with us in that we should keep to the original approach, that's to say with written submissions also, then the original approach is to have the written submissions and then the oral arguments. Now I know that's been put out to an extent by the events that have happened, but it would in our submission make more sense to have the written submissions first and then to have oral arguments by the Defence and, in particular, to have the rebuttal arguments by both sides. So, in other words, our submission is that the Trial Chamber would be in a better position to decide item 5 once it's resolved the question of item 4.

  • Yes. Mr Koumjian?

  • Your Honours, we would request the Court to stick to Wednesday and Friday. That would give us, if we hear the Defence submission Wednesday - actually since I asked for two hours on Wednesday, then the Defence submission may go over into Thursday, but when we - then we would have a little bit of time to respond to their oral submissions on Friday. If we had the responses the day after the Defence submission, we have no time at all, other than overnight, to prepare while the Defence has had our principal oral submission since the 8th of February when we gave it.

    I would also point out in regard to the responses to our brief versus our responding to their brief, the Defence, of course, did have the opportunity on the 31st of January to file a written response, up to 100 pages, to our brief, which was not taken advantage of. We only - we now would like to do the response orally to their brief in the interests of trial efficiency, so our suggestion is we begin Wednesday, with two hours, the Defence has four hours on Wednesday, two hours on Thursday, and then we do the responses on Friday.

  • Mr. Munyard?

  • Mr President, if the Prosecution want extra time and if the Court feels it appropriate to give the Prosecution extra time to put in oral arguments, might I suggest this, that whatever day the Defence make their submissions - sorry, whatever day the Prosecution make their extra oral submissions this week, that we have the Defence submissions on Friday and the rebuttals on Monday? That would then give the weekend to the parties to prepare their rebuttal. I know that people are very anxious - and I think this Court knows that I share that anxiety - to conclude the trial as expeditiously as possible. But if we are talking about hearings in the next few days, then taking it over one day into next week, in our submission, is not inefficient in any way. And if the Court is going to give the Prosecution that extra time, then in our submission, having the Defence on Friday and the rebuttals on Monday makes perfect sense.

  • Just before you sit down, Mr. Munyard, you have suggested written responses to the final trial briefs. Seeing those would be written responses to the final trial briefs and not to the Prosecution closing arguments, would the time for filing the written response necessarily interfere with the date fixed for Defence closing arguments?

  • Your Honours, not necessarily, no. But we nevertheless feel that it would be appropriate to stick to the original timetable for the reasons that I've said. Also, of course, although they are written responses to the final trial briefs, the final submissions in the case are oral submissions and it would be perfectly proper for either party to seek, in those oral submissions, to address something that had been put in the written submissions. The written submissions would consist of two parts, one, the final trial brief, and, two, the written responses to the final trial brief, and it's, generally speaking, the purpose of the rule is to have oral submissions to address what has been put in in writing. That's why we feel that oral submissions should be the concluding stage of this part of the trial.

  • Thank you, Mr. Munyard.

  • Mr Koumjian, do I get you clearly, when you say the Prosecution prefers oral responses, is it because you do not have the manpower to write the responses?

  • It's for that reason, your Honour, and also because we believe we can then submit the case to your Honours for deliberations much sooner than with written responses.

  • And would you object if the Defence presented their responses in writing? Provided, of course, that it was within the time limit set by the judges? Would you have any objections to that?

  • Well, if it's due the same day as our oral argument I wouldn't have an objection to that, but I don't think the Defence should be given additional time that we don't have. They've actually had our brief longer than we've had theirs to prepare a written response when we are doing an oral response with less notice.

  • Just before you sit down, Mr Koumjian, for the purposes of our deliberations, have you totally written off the possibility of a written response?

  • Well, your Honours, we will obey, of course, any order your Honours give and we are, of course, going to obey your orders and we will do a - prepare a written response. We will do it with a reduced team that we have and I think - as I've mentioned, we do believe, we submit, that the prejudice we suffered is exacerbated by the fact that written responses that we begin, due now, we have a reduced team in order to - available to write those. It's easier for us to do oral responses because less people are involved.

  • Mr Koumjian, one last question on the annexes of the Defence final trial brief. It is the Prosecution position that the content of all three annexes is argumentative? Could you illustrate for me just one example of argument in, say, the first annex?

  • Your Honour, the Defence has said that the - that the annexes are merely the testimony of the witnesses. Well, the testimony of the witnesses, the transcripts, are available to your Honours in any event. The words that are on the page in the first annex are the Defence rephrasing of what the witnesses say and what they say Mr Taylor responded. In order for - that's not helpful to your Honours because your Honours will have to look those up anyway, to see what the - whether the witness said what the Defence alleges and whether Mr Taylor's response is, in fact, a response that's accurate as to what he said.

    If I can just have a moment I'll try to find an example.

  • What I was hoping for you to do is to show me arguments, an argumentative content, because the Defence submission was these are summaries of transcript.

  • Yes, in our view, a summary is the Defence argument of what its witnesses said. That - the Defence is not likely to ask your Honours to accept our summaries of the witnesses. If we had put in an annex of all the testimony about individual crimes, for example, that is argument. That's part of the findings that your Honours have to make, the factual findings depend upon the evidence. In the third annex, for example, the Defence seeks to identify who the witnesses said were the perpetrators. Sometimes that may be accurate and sometimes it may be less than accurate because it's a summary. The Defence says, for example, I recall in one instance in the third annex, they say that a witness, I believe it's a Mr - I better not say the name because I'm not sure if he's protected or not - that the witness said that ECOMOG was responsible for crimes that occurred and they are identified as the perpetrator, ECOMOG, during the intervention. If you look at the context of what the witness said, the witness absolutely said that and he said he's still - the people of Sierra Leone - he and his neighbours welcomed the ECOMOG intervention because it was so much better than the junta's crimes. So by selectively picking out part of the testimony of the witness, the Defence -- in our view, that's argumentative. That would be the same as ourselves giving a summary of a witness's evidence regarding Charles Taylor without anything from the cross-examination of the witnesses.

  • Mr. Munyard, do you want to say anything in response to that?

  • Briefly, but importantly in our submission, these annexes are, if you like an index to where the Court will find the evidence on this point. Mr Koumjian's argument seems to us to be a good argument for the need for written responses because there is much that is - we will be submitting, if granted written responses, there is much evidence that is taken out of context in the Prosecution brief, but these summaries are no more than summaries. They are not there intended to persuade the judges, yourselves, one way or another. They are there to indicate this is where this evidence is to be found, and obviously you have your own notes of the evidence and the context in which particular pieces of evidence were given. We are not seeking to persuade you at all by these annexes. We are simply putting them there, we hoped, for the assistance of the Court and for no - we don't seek to rely on them for any reason other than that.

  • While you're on your feet, Mr. Munyard, in the Defence filing of the 7th of February, that's the Defence response to Prosecution motion to substitute Prosecution final trial brief, et cetera, at page - at paragraph 2, the Defence says, "The Defence final brief is not substantive argument but is, rather, a useful reference tool for arguments made throughout the brief."

    Now, I presume you would still abide by that statement.

  • Would your Honour give me a moment? Because it seems to me to contain an inherent inconsistency. I think there may have been a typographical error. Would you give me just a moment for me to respond to that while I look at it?

  • Well, just before you do, Mr. Munyard, perhaps - I was quoting in context. Perhaps I'll read the whole sentence: It starts off, "The Defence notes that, contrary to the Prosecution's arguments at paragraph 12, the material contained in annexes A to C of the Defence final brief is not substantive argument but is, rather, a useful reference tool for arguments made throughout the brief." Perhaps I should have read the whole sentence out. I confused you.

  • I'm very grateful you did and I'm now clear as to what we said. The point about those annexes is they refer the Court to the areas of the evidence which we refer to in the final trial brief itself. So that the Court can then look at those witnesses and those areas of evidence in order to determine whether or not you accept our arguments mounted within the pages, the 548 or whatever it is pages, of the final trial brief. They are an indicator to the court and that's all.

  • Well, what I was going to ask you is this: If the annexes are put forward as a useful reference tool, and the Defence, for instance, were to consider that, well, they are not all that useful because we have to look up the references anyway, I gather that a finding such as that would not induce the Defence to claim any prejudice.

  • Your Honour is absolutely right.

  • Thank you, Mr. Munyard. We will have an adjournment and come up with a schedule. Hopefully we won't be too long.

  • [Recess taken at 2.36 p.m.]

  • [Upon resuming at 3.15 p.m.]

  • We've done our best to consider the points of view of both parties on the submissions they have put to us. I can begin by saying that we had to put next Monday out of the question. There are some logistical problems on that date.

    Now, if we can deal with the matters as in the order listed in the agenda, the first matter is the Prosecution motion to substitute final trial brief, and the Trial Chamber grants the Prosecution request to substitute the revised and refined Prosecution final trial brief.

    Incidentally, if any of these orders are not 100 per cent clear, please let us know.

    The second item, the submissions on whether the Trial Chamber should accept the corrigendum to the Defence final trial brief, the corrigendum, I think the full title is, "Public with annex A and confidential annex B corrigendum to Defence final brief as filed on 3rd of February 2011," that corrigendum is accepted, provided the confidentially - confidentiality requirements are observed.

    The third item, the length and format of the corrected Defence final trial brief, the Trial Chamber considers that the material in annexes A, B and C, can be regarded as factual argument and, as such, properly belongs in the main document, and therefore, the Defence final trial brief will be limited to 600 pages, as originally ordered. We do point out, however, that the Defence final trial brief, as it stands, is 544 pages long. And we get those figures in this way: The first three pages of that final trial brief are concerned with a motion, and the last page bears just a signature and nothing else. So that the proper length of that brief, taking those considerations into account, is 544 pages, which the Defence therefore has 56 pages to accommodate the material in the annexes.

    Now, item 4 and item 5, are the filing of written responses to the final trial briefs and the date and time for Defence closing arguments.

    The Prosecution will be permitted to deliver an oral response to the Defence's final trial brief on Wednesday, that is the 9th of - that's this week, the 9th of March, between 9 and 11. Now, that means the Defence will begin its closing arguments on Wednesday, the 9th of March, from 11.30 and going over to the following day, on Thursday, the period of the Defence closing arguments will be from 9 to 11 a.m. in the morning, in other words, the Defence closing arguments will conclude at 11 a.m. on Thursday, the 10th of March.

    As to the Defence request to file a written response to the Prosecution's final trial brief, the Defence may do so provided that the written response is filed no later than close of business, 4 p.m., Thursday, the 10th of March.

    Now, rebuttal arguments, that is the final item, are scheduled as follows: On Friday, the 11th of March, between 9 and 11, the Prosecution will deliver its arguments in rebuttal, and the Defence rebuttal arguments will take place between 11.30 to 13.30, on Friday, the 11th of March.

    There is just one other matter that I didn't cover, and Justice Sebutinde has reminded me. The Prosecution - I beg your pardon, the Defence corrigendum to the Defence final trial brief, with the amended - as amended by the Court, in other words confined to 600 pages, shall be filed by close of business Wednesday, the 9th of March.

  • There is one other item that we had not canvassed and that's the item of the public filings of your various final trial briefs. Perhaps we should make an order in that regard. Normally it's an option, but this being an important document, there should be a public filing to which the public should have recourse to see where the - what arguments were put forward. And so, in addition to your various confidential trial briefs, you should please ensure that there is a public version filed at the same time.

  • Mr President, may I inquire of your definition of close of business? When you were dealing with Defence written response, you said that we can do so provided it's no later than - by close of business, i.e. no later than 4 p.m. on Thursday, the 10th. You've also referred to a filing by close of business - I don't know where I've put it now - but my understanding has always been that close of business is later than 4 p.m. It's either 5 or 5.30 and that's varied at different stages during the three and a half years. But can I clarify what the Court's understanding of close of business is generally, and if it's beyond 4 p.m., are you making that order about the final - about the written responses slightly different from the normal close of business?

  • No. I think that needs to be clarified.

  • Your Honour, could I possibly be heard on that time for the filings on these two in relation to exactly what Mr. Munyard has just raised?

  • Because of the schedule for the oral arguments, we are to respond Wednesday morning to the Defence brief. So it's our request that we know what the Defence brief is by Tuesday afternoon. I understand your Honours in giving the Defence the option of picking which 56 pages they want to add to the brief from the annexes, are not giving the Defence permission to rewrite their brief, just to select 56 pages from the annexes and I would hope that they could do that by tomorrow by noon and then we would be able on Wednesday to at least respond to the brief, we know what the Defence brief is that we are responding to.

    And also on the Defence oral - excuse me, the Defence written response, 4 p.m. means we would get that at about 5 o'clock probably on Thursday, when we have to give our response Friday morning at 9. I would request a couple of hours earlier, sooner, on that also. If that could be filed by noon on Thursday, then we would have a chance to read it in order to respond in our oral argument.

  • Yes, Mr. Munyard?

  • Can I reply in relation, first of all, to the option of having a written response? It's an option that we have asked the Court to grant us, but the option is equally open to the Prosecution, and so when they say they want to truncate the time for us filing our written response by making it earlier, really, they could put in a written response to our brief if they so wished.

    The oral hearings that are going to take place are fundamentally in response to the final trial brief, as I understand it.

  • Yes. Well, we are not going to revisit those orders, Mr Koumjian, but, Mr. Munyard, you raised that point in clarification what do we mean by "close of business"? Can we say this? That in the orders where we mention "close of business," substitute "4 p.m.," "by not later than 4 p.m." Is that clear or does that complicate matters even more?

  • If you say 4 p.m., then personally I would prefer if you simply say by 4 p.m., rather than by close of business, because --

  • No. I said where "close of business" has been used, substitute "by 4 p.m."

  • Ah, very well. I was hearing things from two different places at that time. Thank you. That is now clear.

    One thing we do need to know, when we file a public version of our final trial brief we need a decision on what exactly is said to be confidential and what isn't in order for us to make sure that we comply properly with the orders of the Court.

  • You expect the judges to tell you what's confidential and what's not, Mr. Munyard?

  • Would your Honour give me just a moment?

  • [Defence counsel confer]

  • Yes. I'm aware that there are currently filings before the Court, not yet resolved, in which the Prosecution take one view on what is confidential, in particular in relation to closed session testimony, and the Defence take another view, and we need to know whether or not reference can be made to closed session testimony, obviously without revealing the identity of the witness. That, at the moment, remains an unresolved dispute as between Prosecution and Defence. That's what I meant by needing to know the precise meaning or the precise ambit of confidential.

  • But Mr. Munyard, this is not to reinvent the wheel, really. When we were hearing the evidence, closed session or otherwise, everybody was enjoined to respect the witness protection, protecting the identity of those witnesses that did enjoy protective measures. And where the content of the evidence they were giving was also likely to reveal their identity because it was unique, then that evidence was heard in private session or closed session. So the same rules would apply in the filing. If you think that the closed session testimony can be referred to without disclosing the witness's identity, then that can be made public, but you run the risk, because whatever was in private session was in private session for a reason. It wasn't in private session for fun.

    So when you're filing a public filing, these are the kinds of considerations that you take into account. Now, we sitting here cannot tell you page this, paragraph that, should be confidential. We don't know. But we are depending on the good judgment on both sides to measure and know what is likely to reveal the identity of a witness, a protected witness, and what is not, to balance, in other words, the publicity of the trial with the protection of witnesses.

  • Your Honour, all I can say is we always do our very best to make sure that we don't reveal any identifying evidence. However, where there is a dispute between Prosecution and Defence, and we take the view that in referring to something we clearly aren't identifying the witness, it may well be that the Court is the only arbiter of whether or not that material can be disclosed. Can I also raise another question about the filing of the public version of the brief? I didn't hear your Honour giving a specific date, or your Honours giving a specific date, in relation to when such a public version should be filed. And, indeed, if I'm right, if you didn't give a specific date, then I would invite you to give us a period of time in which to do that. It obviously is a task that requires a great deal of care, and I would have hoped that that isn't a document that we have to file in a hurry, within the next week or so, and I would invite the Court to give us plenty of time to make sure that the public version can be properly - sorry, that the confidential version can be properly edited so as to turn it into a public version.

  • Do I correctly recall that the Prosecution has filed a public version of your revised version?

  • No, your Honour, we filed a public version of the introduction only. That's public. But certainly, we agree that both parties, and actually we are more concerned with the Defence, be given plenty of time to make sure they get it right and we'll be prepared to file a public version of our entire brief within a month, within one month of today.

  • Mr. Munyard, do you reckon a month is reasonable?

  • All right. Well, that can be the final direction, then, that the public versions of the Prosecution and Defence final trial briefs to be filed within one month from today.

    Now, before we adjourn, is there anything that's not clear in the orders we've set out? I realise we have not reduced them to writing, and I'm just hoping that nobody has been confused or is unclear on anything we've said.

  • No, thank you.

  • Thank you. We will adjourn then until 9 a.m. on Wednesday, this Wednesday.

  • Whereupon the hearing adjourned at 3.36 p.m., to be reconvened on Wednesday, the 9th of March 2011, at 9.00 a.m.