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

Madam President, I will speak to two issues relative to uncorroborated hearsay very briefly. This morning learned counsel opposite said in respect of Rule 92 quater, which is identical before the Special Court as well as the ICTY, that the rule explicitly does not require corroboration. If you look at the language of the rule, it doesn't. That's obviously the case, it's not in the rule, but if you analyse what the Prosecution is suggesting, that because corroboration is not explicitly written in the rule there is some significance to that, you have to ask yourself which judge in a common or civil law system would utilise the statement of for example a deceased witness, no longer available, not subject to cross-examination, in a decisive manner to sustain a conviction? Where could that possibly happen? And that is why you have to shift from the language of the rule to the jurisprudence, and in case after case after case in relation to Rule 92 quater the judges look at whether or not there is corroboration. Now, this issue arose this morning in court. We did not have the time yesterday to provide references by way of the set of documents we provided your Honours, so I will read a few decisions from the ICTY into the record, at least the citations, and indicate the jurisprudential principle that they represent. The first case, Prosecutor versus Milutinovic, this is a decision in respect of Rule 92 quater dated 16 February 2012, decision on Prosecution motion for admission of evidence pursuant to Rule 92 quater. That case stands for the proposition that a statement or transcript admitted without cross-examination cannot support a conviction by itself, unless the statement is otherwise corroborated. This is the point we've been trying to make. Another question -- another case that identifies corroboration as a factor to look at, and there are several of these, Prosecutor versus Stanisic and Simatovic. This is a decision dated 16 December 2010, decision on Prosecutor's motion for admission of evidence of Witness Milan Babic pursuant to Rule 92 quater. Another case to place on the record would be the Seselj case, and this is a decision from 13 May 2009 and this was a circumstance where the testimony of the witness was admitted pursuant to Rule 92 quater and this testimony went to the acts and conducts of the accused, but there was corroboration by other evidence in the case. However, the Trial Chamber noted that it could not base a conviction solely or to a decisive extent on evidence that has not been subject to examination by both parties. So although the notion of corroboration is not written explicitly in the rule, de facto in practice invariably it is always considered by Chambers when faced with proposed evidence under Rule 92 quater. The second issue I will address deals with the remark this morning by learned counsel opposite that our submissions yesterday to the effect that there is a wide-spread practice of disallowing the use of uncorroborated hearsay as the sole basis for specific incriminating findings of fact is inaccurate because the cases we rely upon do not sustain that assertion. That was said this morning by learned counsel opposite. Well, the question presented to us that we addressed is not necessarily whether the cases we relied upon sustained that assertion. The question presented was whether the sources of law under Rule 72 bis (ii) and (iii) stand for such a proposition, and that is the question to which we responded. The issue now is not whether or not the cases we cited in our briefs, which at the time we filed them did not reflect the question presented, although we did say in our brief in paragraph 26 that it is impermissible to base a conviction solely on a decisive manner on uncorroborated hearsay and we stand by that. But more significant is the -- are the submissions I made yesterday, and your Honours will recall that when we undertook the review of the decisions of the European Court of Human Rights, when we undertook the review of the statutory provisions and other decisional law safeguards in the various national legal systems including Sierra Leone, what we submitted was that at the end of the day, regardless of how they arrived at the result, regardless of what provision obtained in their respective jurisdictions, that there was a wide-spread and consistent practice, easily discernible, that uncorroborated hearsay could not serve as the sole or decisive basis for a conviction. We stand by that. So whether you say the European Court of Human Rights has back-pedalled a bit on the rule it pronounced in Al-Khawaja or not, if an English judge applies the 2003 Criminal Justice Act and its provisions to the same facts and the European Court of Human Rights judge applies the European Convention to the same facts, we are saying the result element invariably is usually consistent. So those are our submissions, and on behalf of my colleagues at the Defence Bar we thank you for your attention.

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