When we did refer the Trial Chamber to the motion yesterday, Defence counsel reminded the Court that it did render a decision on that motion and perhaps it is helpful to look again at that decision. And on the second page of that decision the Court stated:
"Considering that the proposed guidelines reflect well-established principles already laid down in the Statute, Rules and case-law of the international criminal tribunals and that the Rules are intended to be flexible in order to enable the Trial Chambers to interpret them in the fairest manner in the specific circumstances at issue ...", the Trial Chamber holds the proposed guidelines are unnecessary (not that they were incorrect, but unnecessary) and that they could fetter the Trial Chamber's discretionary powers.
The Prosecution refers to that decision and the other authority for a very simple premise, and that is when we realise that the rights afforded the accused are the same in the Special Court and the ad hoc tribunals the jurisprudence makes clear that the right of cross-examination is not an unlimited right. It also makes clear that limitations may be placed on cross-examination and those limitations applied to the accused and that does not deprive the accused of a fair trial. Obviously discretion lies with the Trial Chamber to determine what is required in fairness, but it cannot be said as an absolute that there cannot be limitations on cross-examination.
Now very simply with that in mind what we suggest is that we have a situation where the witness may not be available after this week through a confluence of circumstances, that the proposal of the Prosecution would allow the Defence twice the time, or one-and-a-half times the time, for their cross-examination that we take for direct, that the jurisprudence and guidelines developed at the ICTY in general limit the Defence to no more than the same time for direct examination and in many instances only 60 per cent of that time.
Now, we realise that of course there can be a showing of good cause to allow for additional time. We believe in the circumstances that it would be fair and that it would not violate the rights of this accused if the Trial Chamber were to limit the examination in the way that the Prosecution has proposed and that is what we request.