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

Madam President, your Honours, may it please the Court, I will deal with the issue of uncorroborated hearsay. I will be brief. There is really one significant issue we feel we ought to respond to. Yesterday learned counsel opposite suggested to your Honours that the manner in which question 5 has been framed is perhaps inapposite to the circumstances of this case. The particular distinction was between a conviction, on one hand, vis-à-vis specific findings of incriminating facts on the other hand. That was repeated this morning in their response to our submissions yesterday. I wish to deal with that issue briefly because it's important, and we feel it's a specious distinction, it is deceptively attractive, and the manner in which hearsay, uncorroborated hearsay has been used in this case, in particular circumstances, have led to convictions being entered against Mr Taylor and we will use one or two examples as illustrative of that point. Two issues: The jurisprudence that we are relying on implicates a conviction. Yes, the language of the European Court of Human Rights cases speak of a conviction, that a conviction may not be based solely or in a decisive manner on uncorroborated hearsay, but yesterday learned counsel opposite referred to the Al-Khawaja decision, and in particular to paragraph 31, and in that paragraph we found the Court elaborating on what the words "sole" or "decisive" mean, and we learned yesterday that the word "sole" has not posed any difficulties in cases that have come before the Court, but that the word "decisive" has been the problematic word and the Court said that "decisive" is tantamount to determinative. So the evidence must be of the level or threshold that it is determinative of the outcome. This is what we say is significant. You look at the evidence, you look at the context of the case and you ask: Does it determine the outcome in a significant way? Now, Al-Khawaja concerned what ordinarily are assault cases. In England and Wales, I hear they call them grievous or grave bodily harm cases, so these are assaults, whether it is actual bodily harm or grievous bodily harm. In those sorts of cases, which make up the predominant types of cases that we considered yesterday that went before the European Court of Human Rights, the factual matrix is very simplified. They are usually cases that the identification of one witness is critical to the outcome. Al-Khawaja was a physician. He assaulted two female patients. One was deceased and you have one alive. Tahery was somebody who stabbed somebody in the back, the victim did not see who stabbed him, and the critical issue was the eye-witness identification of Tahery. This case is a war crimes case. You will have to search significantly to find any specific finding of fact that would directly undergird a conviction. It is a mosaic of finding of facts that lead to a conviction in this type of case, a case where the indictment spans six years, and you have to look at the individual findings of fact and how the Trial Chamber used them to arrive at a conviction. Yesterday I spoke of different permutations of uncorroborated hearsay as we see it and I gave the example of Isaac Mongor, TF1-532 and TF1-371, and Isaac Mongor's testimony was relied upon by the Trial Chamber to find that the mens rea element of planning was satisfied in this case. This is the reference that Isaac Mongor says he heard from Sam Bockarie that the accused told Sam Bockarie to make the operation fearful. TF1-371's testimony was also relied upon to sustain a finding that the requisite mens rea level for planning was satisfied, and that was the hearsay evidence that Sam Bockarie told TF1-371 that the RUF should use all means to get to Freetown. Those are critical findings in this case. Standing alone, it is difficult to pinpoint or it's difficult to expressly state that they were the sole or decisive factor for a conviction, but coupled together you would not have a mens rea finding for planning without those two pieces of hearsay. We've addressed this issue in our brief under Ground number 15, and I would cite your Honours to paragraphs 300 and 302 of our brief and 308 to 309 of our brief. For the other issues from yesterday, Madam President, we would stand on our written and oral submissions, but before I take my seat I will yield to Mr Gosnell who wishes to make a brief correction to the record. Thank you.

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