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

Good afternoon, Madam President, your Honours, and good afternoon to colleagues around the courtroom. I'll be addressing question 6 from your scheduling order, namely, how the Appeals Chamber should apply existing jurisprudence on adjudicated facts in the context of a Defence motion filed after the close of the Prosecution case. I'm aware of the time, your Honours, and it's already been a long day and so my submissions will also be quite brief, and happily, like the Prosecution, we have a short answer to this question. In our submission, the mechanism of judicial notice still operates effectively and fairly, even in the context of a decision for judicial notice taken after the close of the Prosecution case and at the request of the Defence. But first very, very briefly, why are we talking about adjudicated facts now in this appeal? Because in March 2009 - so this is after the close of the Prosecution case but before the start of the Defence case - the Trial Chamber in Taylor took judicial notice of a number of adjudicated facts from the AFRC case, including the now contentious adjudicated fact 15 which concerned the Freetown invasion, and the AFRC Trial Chamber found that the RUF reinforcements who are on the outskirts of Freetown didn't manage to provide support to the AFRC troops who were involved in the fighting in Freetown. Now, once the Trial Chamber had judicially noticed adjudicated fact 15, Mr Taylor was able to streamline his case accordingly and not bring evidence on this point. In the Taylor Judgement, however, the Trial Chamber found the opposite. It found that the RUF troops had managed indeed to connect with the AFRC troops who were fighting in Freetown, and it did this on the basis that the Prosecution had allegedly reopened the debate into adjudicated fact 15 through a submission in its final trial brief. Now, this finding that the troops had indeed connected in Freetown was integral to the planning conviction that the Chamber ultimately handed down against Mr Taylor. Now, our submissions today won't focus on the question of whether or not the Trial Chamber was correct or incorrect in doing so. That's all set out in ground 6 of our appeal brief. Rather, your Honours have asked us to focus on the question of the fact that adjudicated fact 15 was judicially noted after the Prosecution had finished presenting its proof and at the request of Defence, and how the existing jurisprudence applies to this situation. Individual trials before the international criminal courts obviously aren't conducted in vacuums. The subject matter of a trial will generally overlap with the trials that went before it in terms of the underlying conflict, in terms of the events that are considered, the temporal jurisdiction, the individuals involved, and so Rule 94(b) of the Special Court Rules, which incidentally is the same at the ICTY and the ICTR, allows facts that have been decided in one case to be incorporated into another case and this rule relieves the party who seeks judicial notice of the burden of having to re-prove something that's already been decided in another case. So this process is about efficiency, it's about judicial economy. It makes the trials quicker. It means parties can cut their witness list, they can bring less evidence and they can shorten the presentation of their cases. It also helps in making sure that the Judgements across a particular court are consistent and not contradictory, and it's also been credited with relieving victims and witnesses from the burden of having to testify about often traumatic events on multiple occasions. Now, it was Prosecution teams who first began to harness this mechanism to their advantage and so the jurisprudence which built up around Rule 94(b) was always in the context of a Prosecution request, generally filed at the beginning of a case, and the Defence being the party who could come back and rebut the presumption of truth that attached to an adjudicated fact, and we understand this as being the existing jurisprudence to which your Honours refer in your question. But you've asked how this existing jurisprudence applies to what happened in the present case, namely, adjudicated fact being judicially noted once the Prosecution case had finished. So why does it matter when judicial notice is taken and at whose request? It matters because when a Trial Chamber takes judicial notice of a fact, it's not the end of a story. Although there's a presumption of truth that attaches to that fact, the presumption can still be rebutted. As explained by His Honour Judge Shahabuddeen of the ICTY Appeals Chamber in a 2003 opinion in Milosevic, which is item 246 of our Defence appeal bundle, "It creates a presumption that the adjudicated fact is accurate unless rebutted. It is not intended to dispense with the right of the opposing party to make that rebuttal." So the non-moving party must be given an opportunity to come back and lead credible and reliable evidence to challenge the adjudicated fact, and if they do this, this re-opens the debate into the fact and the original party, the moving party, can come back and submit evidence in support of that fact. Now, plainly, the later in a case a decision for judicial notice is taken, less opportunity there is for this challenge and response procedure to be carried out. But this can still happen and does happen, even when judicial notice begins in the second half of the case. The question then becomes, how does the Prosecution do this? How does the Prosecution challenge an adjudicated fact if it's already finished presenting its witnesses? And Trial Chambers have held that this can be done in two ways: The Prosecution can do this through its cross-examination of Defence witnesses or it can do this through seeking to call a case in rebuttal, which then leads to the next obvious question, but wouldn't that make the case longer if the Prosecution has to extend its cross-examinations or call additional witnesses? Well, this is precisely what a Trial Chamber weighs when it decides whether or not to take judicial notice after the close of the Prosecution case. A Trial Chamber has the discretion to consider how significant is the issue to the case; to what extent will the Defence be able to shorten its case; will the Defence be able to drop one witness or five witnesses or 30 witnesses; does the Prosecution dispute judicial notice being taken; does the late stage of the case mean that, in all likelihood, the Prosecution would have to call rebuttal witnesses, thereby lengthening the case rather than shortening it? All these questions ensure that judicial notice is only taken when it doesn't lead to unfairness. And this where the Prosecution and the Defence diverge in the present appeal. The Prosecution says that, in addition to these two ways, through crossing Defence witnesses or potentially leading rebuttal evidence, the Prosecution can also challenge a adjudicated fact through evidence it's already led in its case in-chief, and we say that's incorrect in law and inconsistent with the jurisprudence and would in fact render the rule a dead letter. To explain this in concrete terms, just say the Prosecution has led evidence in the case that, in 1998, there were killings in Kono, and then the Trial Chamber during the Defence case judicially notes an adjudicated fact from an earlier case that in 1998 there were no killings in Kono. If the Prosecution is allowed to challenge that adjudicated fact through evidence it's already led in its case in-chief, taking judicial notice would mean nothing. It would have no effect. The Defence would have no choice but to lead evidence to support the adjudicated fact during the Defence case. It couldn't rely in any way on the Chamber having taken judicial notice of the fact because, according to the Prosecution, the challenge has already been made. So there's no shortening of the case, there's no cutting of witness lists, there's no streamlining of the Defence case. There'd be no judicial economy. The whole purpose of Rule 94(b) would fall away. The adjudicated fact in fact wouldn't be adjudicated. It would be a live issue. The Prosecution's issue on appeal isn't supported by the jurisprudence, and to take the 2003 Krajisnik decision as an example, only because it's the example that the Prosecution gave this morning, and it can be found in the Prosecution's appeal bundle at item 17, in paragraph 16 of that decision, Trial Chamber I of the ICTY held that "Once a fact is judicially noted, it doesn't have to be proven again at trial unless the other party brings out new evidence and successfully challenges the fact. So, new evidence, not evidence that it may or may not have already led in its case in-chief. The jurisprudence on this point has remained consistent, and we point your Honours to the most recent comprehensive adjudicated facts decision, which is on 2 May last year, 2012, in the Mladic case, which is at item 25 of our appeal bundle, at paragraph 17. And this makes sense. Judicial notice wouldn't serve any purpose if the Defence couldn't rely on it to shorten its case. No Defence team could ever advise an accused to drop witnesses or streamline his or her case if the Prosecution was allowed to pop up at the end of the case and say, "Oh, by the way, those adjudicated facts, we actually brought some evidence at the beginning of the case to challenge them, so although you thought you could rely on the fact that the Chamber had judicially noted them, too bad, you can't, and you should have brought evidence on them," and that's exactly what the Prosecution is doing in this case. When Trial Chambers take judicial notice, it's for the express purpose of allowing Defence teams to streamline their cases and not lead evidence on the fact, and if the Prosecution's position was accepted, no Defence team could ever safely rely on a decision or benefit from a judicial notice mechanism. And any concerns on the part of the Prosecution should be allayed because the safeguards that are put in place by the existing jurisprudence ensure that the Prosecution will always have a chance to rebut an adjudicated fact of which judicial notice is taken in the Defence case through either crossing Defence witnesses, or if it deems necessary, calling a rebuttal case. The Trial Chamber won't take judicial notice of an adjudicated fact if it's too late for the Prosecution to have a chance to rebut it, and a good practical example of this is the two decisions on judicial notice that were taken in the Taylor case. So, in March 2009 the Defence asked for judicial notice of facts from the AFRC case, so including this adjudicated fact 15. Now, the Prosecution opposed the Defence motion and they said, if you take judicial notice now, that will cause unfairness to us. It will put us at a disadvantage because we've presented all of our evidence without any notice that we had a burden to rebut these facts. And the Trial Chamber considered that argument and they said, no, you do have an opportunity. You have an opportunity in two ways: Either through crossing the Defence witnesses or calling a rebuttal case, and this approach was consistent with the jurisprudence and significantly was not appealed by the Prosecution. They didn't seek to appeal this decision or seek reconsideration on any point. But eight months later, the Defence tried again. The Defence said: This time we would like judicial notice of facts from the RUF case, and again the Trial Chamber looked at all the relevant factors and said, okay, now, not only has the Prosecution case closed and the Defence case opened, but the Prosecution has already cross-examined a number of your witnesses, including Mr Taylor. So the Trial Chamber reasoned at this stage, in all likelihood, if the Prosecution wanted to rebut the adjudicated facts, it would have to call a rebuttal case, and this would lengthen rather than shorten the case, and so the Defence request was denied. So the same safeguards apply regardless of when judicial notice is taken and when the motions are filed and it's up to each Chamber to assess whether, in the particular circumstances of a case, taking judicial notice will promote efficiency or not. The Prosecution in this case failed to challenge adjudicated fact 15 through the introduction of new credible and reliable evidence, despite it being on notice that it was required to do so, and the Chamber could only find that they brought this challenge in their final trial brief, and for the reasons set out in ground 6, we say this was an error. And, your Honour, unless there are any questions, I'll pass to Mr Anyah to complete our presentation.

Keyboard shortcuts

j previous speech k next speech