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

Good afternoon again, Madam President, your Honours, counsel opposite. May it please the Court. Madam President, the question presented about hearsay, we answer in the affirmative, yes. The question presented is whether the sources identified in Rule 72 bis (ii) and (iii) establish that uncorroborated hearsay cannot be relied upon as the sole basis for specific incriminating findings of fact. We answer it "yes" because there is a substantial body of law which establishes what we say is a consistent, a widespread practice of disallowing the use of uncorroborated hearsay as the sole basis to sustain specific findings of incriminating facts. The bodies of law to which I refer are consistent with those delineated in Rule 72 bis (ii) and (iii), applicable treaties, international customary law, the laws of nations - the national laws, if you will - of legal systems. And it's important here to elaborate briefly on this customary international law notion. We know it derives from the North Sea Continental Shelf case from 1969. It is also reflected in the ICJ Statute, Article 38, and it consists of two critical ingredients, the notion of state practice at a consistent level, and more importantly, the subjective element of opinio juris, that the States believe to be bound by the rule of law in question. The examples that I will give derive from the European Court of Human Rights and its interpretation of Article 6(1) in conjunction with 6(3)(d) of the European Court of Human Rights, I will look at the law of national jurisdictions: The United States, the UK, Hong Kong, New Zealand, Canada, South Africa, Australia and Ireland and Scotland, and also Sierra Leone. Sierra Leone is mentioned in Rule 72 bis (iii). We say that there is an established practice. Tomorrow we'll have the opportunity to respond to the Prosecution's submissions from today. This established practice, regardless of how different legal systems arrive at their conclusion, is there nevertheless. Whether you call the rule a rule of a sole or decisive basis standard, as articulated by the European Court of Human Rights, or whether you follow United States' jurisprudence and the rule of Crawford v. Washington, as well as the federal rules of procedure, or whether you follow the Criminal Procedure Act of 1965 of Sierra Leone, the result element is usually the same. Generally, there is the overall prohibition of hearsay, and then you have exceptions and you have circumstances under which hearsay may be admitted. Uncorroborated hearsay is merely one permutation of the various kinds of hearsay, and what we find vis-à-vis this established practice are three key principles. The first one is the notion of necessity: Why is it necessary to allow hearsay evidence to be admitted and subsequently relied upon? And these usually involve cases where there's an effort to preserve the record. So you have a situation where somebody is deceased, or the person might be alive but mentally infirm or hesitant to give evidence, and then the issue becomes how do you preserve the record. Those circumstances usually involve a deposition, a statement in which a court reporter is present or otherwise a record is made of the statement of the declarant. The second important and relevant principle is reliability: How reliable is this hearsay evidence? The various jurisdictions in one way or another consider this factor. They look at, for example, is the identity of the declarant known? They look at the issue of corroboration, which is the subject of your question. They look at the issue of whether, if the declarant had come to court to testify, the evidence would be admissible. Issues such as the nature of the statement are looked at. Was the statement made under circumstances that give it an additional reliability, if you will, like a dying declaration, a statement against pecuniary interest, for example? Courts look at whether it is double hearsay that is at issue in assessing its reliability. The Prosecution was right in saying fairness matters. Indeed, the fairness of the trial undergirds all these issues that the courts examine, but in addition to looking at issues of necessity and reliability, the courts also, adopting provisions from decisional law as well as statutory law, look and apply procedural safeguards. Most legal systems have statutes that delineate safeguards that should be considered when hearsay is involved. Those safeguards, in many instances, provide for a directed acquittal by a judge, in circumstances where the Prosecution's case has ended, the hearsay is an integral part of the case and yet it is extremely unconvincing. These jurisdictions provide for jury instructions in cases of jury trial, what we call limiting instructions about the dangers about hearsay, and in some instances these jurisdictions provide a trial judge with the ability to do a balancing act, if you will, and consider whether the benefit of admitting the hearsay substantially outweighs other dangers such as the danger of undue delay and prejudice to the accused. These are the regime under which hearsay is considered in most of these jurisdictions. The decisional law does not distinguish necessarily between hearsay, on the one hand, generally speaking, and the specific permutation of uncorroborated hearsay, but the analysis of whether or not there is corroboration is integral to the reliability element when assessing whether to admit hearsay or not. Now, another key and vital principle that comes into play is the notion of the right that an accused has to confront his or her -- the witnesses against him or her. This is reflected in Article 17 of our Statute, 17(3)(e). It is reflected in Article 6(3)(d) of the European Convention of Human Rights. This is a vital consideration. Does the accused exercise his right, either in the form of having had the opportunity on a previous occasion to examine the witness or to have the witness brought before the court to be examined by counsel for the accused or by the accused? When this factor is not complied with, it becomes more difficult to have uncorroborated hearsay admitted. Now, the European Court of Human Rights jurisprudence. We go back to 1986. There's an Austrian case, Unterpertinger v. Austria, and in this case the court found a violation in the sense that the accused was unable to cross-examine two declarants of statements that were admitted, and in doing so the court for the first time made reference to this sole or decisive degree rule, the rule that says it is impermissible to base a conviction solely and decisively on uncorroborated hearsay. This is where the genesis of that rule begins. A few years later, indeed, ten years later, in Doorson v. The Netherlands, the court did not find a violation of Article 6(3)(d). Why? Because there was corroboration and the identity of the hearsay declarant was known. The Doorson case is at tab 38 of the bundle of documents we provided. Almost a decade later, 2005 and 2006, the Al-Khawaja case begins. This is a consolidated case, Al-Khawaja and Tahery, from the United Kingdom. It goes to the European Court of Human Rights. In 2009, January, the court rules that there was a violation of Article 6(3)(d), and the court in that instance pronounces a rule that appears to be an absolute rule, indeed, the finding makes it absolute that a conviction that rests solely or decisively on uncorroborated hearsay cannot stand because it violates Article 6(3)(d). A few months after that the UK Court of Appeals considered the case of Horncastle and others; two different cases, two accused in each case, consolidated into one. And the Court of Appeals ruled contrary to the rule pronounced in Al-Khawaja and said there cannot be an absolute bar to uncorroborated hearsay when it forms the sole or decisive basis of a conviction. The UK government appeals the Al-Khawaja ruling to the Grand Chamber. The Grand Chamber of the European Court delays its decision to allow the Horncastle case move through the UK system, and then Horncastle is appealed from the Court of Appeals in the UK to the Supreme Court of the UK, and the Supreme Court of the UK issues a decision on 9 December 2009 and its decision affirmed the Court of Appeals, saying that the sole or decisive factor rule cannot be absolute, there are exceptions to the rule. However, the court said that if the procedural safeguards built into the UK's Criminal Justice Act of 2003 are followed, it would have the same effect as applying the sole or decisive factor rule. So the court is saying, yes, exceptions to the rule exist and should be acknowledged, but the danger to an accused of receiving an unfair trial is extremely diminished and not likely if the provisions of their own safeguards, the 2003 Criminal Justice Act, are applied. There is no distinction -- there is no difference, in our view, in the result element, whether you apply the European Court of Human Rights or you apply the standards of the 2003 Criminal Justice Act in the UK. The result element is the same: It's to view hearsay with caution, it is to evaluate its reliability vis-à-vis whether there's corroboration or not, it is to examine the overall fairness of the process, considering in particular whether or not the right to cross-examine witnesses was upheld, in particular, the out-of-court declarant. In tab 41 of our bundle is the Horncastle decision, and in annex 4 of that document, which is at page 5, the UK court lists several cases from the European Court of Human Rights where violations of Article 6(3)(d) have been found, and the UK court considers whether or not, had its Criminal Justice Act of 2003 been applied, it would still have found a violation, it would also have found a violation like the European court. And in almost every case, the outcome is the same. What was inadmissible before the European court would have been inadmissible before a British court. So we don't see any conflict in the practice de facto between these different legal systems. Now, national law, the United Kingdom, I've spoken of the Criminal Justice Act of 2003. Its cornerstones are reliability in Section 116, and in Sections 124 and 126 we have the issue of fairness and the different standards that have to be looked at. Section 124 deals with evidence that might be admitted to impeach the credibility of the out-of-court declarant. Section 125, the judge may stop the case after the Prosecution's case in-chief, as I said before, when it's convincing and the hearsay place an important role. The United States, Crawford v. Washington, reliability is not sufficient alone. The Sixth amendment to the Constitution of the United States requires confrontation. The accused must confront or have the ability to confront the witnesses against him or her. And then you have the federal rules of evidence which are instructive of a general principle in the US, and we have the blanket prohibition of hearsay in Rule 802, and in Rule 803 we have exceptions, and in Rule 804 we have exceptions on the basis of an unavailable witness. I've mentioned some other jurisdictions. I will go through them quickly. Scotland is interesting because, in Scotland, whether it's hearsay or not, if it's not corroborated, the testimony of a single witness cannot sustain a conviction. It doesn't matter if it's hearsay or not. So Scotland has a higher threshold, if you will. Now, there are conditions in Scotland when hearsay will be admitted, for example, when the declarant is deceased, and in Scotland it's covered by the Criminal Procedure Act of 1995. In Ireland, the protections for an accused derive from the Irish constitution, Article 43(1), and that provides a right to fair procedures. This is something declared by the Irish Supreme Court. And imbued or implicit in that right to fair procedures is the right of confrontation, to confront witnesses against an accused. There are exceptions but those exceptions are dealt with on an ad hoc basis. Canada, in tab 46, we have provided a case from the Supreme Court of Canada, an important case, the Khelawon case, and Canada assesses the admissibility issue using a necessity standard, is it sufficiently necessary to admit the hearsay, and then the reliability standard, whether the evidence could be sufficiently verified by the judge before it is placed in front of the jury. Now, interestingly in this Canadian case, the court introduced a more stricter reliability standard, adding also that there must be a showing that there was no real concern about whether the statement was true or not because of the circumstances in which it came into being and that there was no real concern because the truth and veracity of the statement could nonetheless be sufficiently tested by means other than cross-examination. Australia, the Evidence Act of 1995 governs this. This is at tab 47 of our bundle. There are exceptions, but again reliability is looked at, whether in the circumstances make the statement unlikely to be a fabrication, whether when the statement -- whether the statement was made shortly or after the asserted fact occurred, and whether the circumstances make the statement highly probable to make it reliable. New Zealand, the Evidence Act of 2006, it looks at unavailability, reliability, and considers the issue whether circumstances, including the nature of the statement, the contents of the statement, the circumstances that relate to the making of the statement, and other issues that touch upon the credibility, make it more probative to have it admitted. New Zealand and Canada were drawn upon by Hong Kong, which adopted the necessity standard: Is there a necessity for the hearsay evidence and is it reliable? So Hong Kong adopts New Zealand and Canada. South Africa, we've provided a case at tab 50, State v. Ramavhale, and in South Africa, the Law of Evidence Act of 1988 governs this issue, and the Supreme Court of South Africa in Ramavhale said that, "Despite this Law of Evidence Act, there remained an intuitive reluctance to permit untested evidence to be used against an accused in a criminal case." It said that, "Previous authority of the Court confirmed that a Court should hesitate long in admitting and relying on hearsay which plays a decisive or even significant part in convicting an accused, unless there are compelling reasons to do so." That's South Africa, tab 50. Sierra Leone, we have the Criminal Procedural Act of 1965 in tab 1, and what's interesting, in Sierra Leone it speaks of depositions as well. We're not just talking of an out-of-court statement with no court reporter, unrecorded, otherwise by perhaps an investigator of the Prosecution. We're talking about a deposition that invariably involves the judicial process. Tab 51, page 21, it deals with the preservation of evidence, speaks of a deposition, and the statement has to be made on oath or affirmation, notice has to be given to the accused to be present; and paragraph 64 on that page, that "Such statement so taken may afterwards be used in evidence on the trial of the accused if the person who made the statement is deceased [dead], or the court is satisfied that for sufficient cause his attendance cannot be procured, and if reasonable notice of the intention to take such a statement was served on the accused and he had, or might have had, the ability to cross-examine the person." So did the accused have a right or ability to cross-examine the person and is the court satisfied that the person's attendance could not be procured or the person is otherwise unavailable? If you go to the next page, page 20, subsection B at the top of the page, "It must be proved at the trial, either by certificate purporting to be signed by the magistrate before whom the deposition purports to have been taken, that the deposition was taken in the presence of the accused and that the accused or his advocate had full opportunity to cross-examine the witness." These are safeguards provided by the legal systems of the world vis-à-vis uncorroborated hearsay and indeed hearsay generally. What is interesting when you look at our Judgement in this case, it is that it is replete with the use and reliance on uncorroborated hearsay. Our rules provide in Rule 92 quater identical language to the ICC language in the 92 quater and the anomaly here is that if it were a circumstance falling under Rule 92 quater for an unavailable witness, you could not admit their statement, though taken on record by a court reporter, unless there was corroboration. The jurisprudence from the ICTY is extensive in this regard, and your Honours are well familiar with Article 20(3) of our Statute and the need to rely on this jurisprudence, where appropriate. But yet in our case, and we've raised this issue in ground number 2 in our appellant's brief, in instance after instance, you have the Court relying on Sam Bockarie's statements made out of court to others. Sam Bockarie is not available, but if it were a Rule 92 quater situation and Sam Bockarie had made those statements to a court reporter, you would require corroboration, and yet in our case no corroboration in many instances was sought or relied upon by the Trial Chamber. I will turn quickly to the facts of our case just to give your Honours some examples. This will be at tab 35, and I would ask that these examples be displayed for your Honours. I have already provided the information to the courtroom representative from the CMS. I will start at page number 4.

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