Madam President, your Honours, it's perhaps of assistance to recall that we are in a criminal justice proceeding and the basic tenet of a criminal justice proceeding is that each individual shall be responsible for the consequences of their knowing, wilful choices and actions. And it was the knowing, wilful, conscious choices and actions of the accused through his Defence counsel that led to them to decide that their wishes triumphed over the clear orders of the Court. You were asked to reconsider, you declined to reconsider, and nonetheless, they continued to manage their case as though your Honours were not in control of these proceedings.
There is no right of any accused to determine if and when and under what circumstances they will abide by rules of the Court and orders of the Court. Orders of the Court are binding until those orders are either revoked or amended. And neither this accused nor his counsel have any right, founded on any fundamental fairness principle, to disregard the orders of this Court.
The independence of counsel is not defined as the right to flout the orders of the Court, the fact that the Trial Chamber is in control of these proceedings. That is not what is meant by independence of counsel. Independence of counsel is something that is exercised within the confines of the structures, the procedures and the orders and overall control of the Trial Chamber, not the independent whims and wishes of the Defence counsel or the accused.
Defence counsel today tells you they have laboured for several months to file this brief and yet they've also told you because of their wilful choices they did not file it as your Honours had ordered.
This accused, through his counsel, had three opportunities to put forward his submissions to your Honours, who have an independent duty to review the evidence and determine the guilt of the accused even if neither party make submissions to you. He had three opportunities. He consciously, knowingly, wilfully, has waived two of them and it appears today he is waving the third. They had the opportunity to file the final trial brief on the 14th of January, as ordered. They had the opportunity to respond to the Prosecution final trial brief on the 31st of January, as ordered. They waived those opportunities. And today or tomorrow they have the opportunity to present oral argument and it appears from what we have heard that this accused, through his counsel, is consciously waiving that opportunity as well. That is his election, that is his choice and he bears the responsibilities of that election and that choice.
Defence counsel said, "I have made a decision and we will leave." Well, Defence counsel and the accused do not have that authority. The accused is not attending a social event. He may not RSVP at the last minute. He is the accused in a criminal proceeding and it is for your Honours to determine if he is allowed to leave the courtroom, not for him to independently choose whether or not he stays or goes.
This defence counsel is an assigned counsel, he is assigned by the Principal Defender until the finality of the case and under the Rules of Procedure and Evidence, Rule 45(E), it indicates that assigned counsel shall represent the accused until the finality of the case. And if you look at that rule, it talks about the Defence counsel being permitted - permitted - to withdraw, and in that instance only under the most exceptional circumstances. Not getting your way is not an exceptional circumstance.
The code of conduct, Article 18, if we look at (A)(ii), because he is assigned by the Principal Defender, he cannot terminate his services. The Principal Defender may terminate his services. He cannot. The directive on the assignment of counsel, Article 24, does not include termination of an assigned counsel by the accused or on that counsel's own volition. The Principal Defender may withdraw the assignment of that counsel but only under exceptional circumstances.
And if we look at the rules of procedure and evidence, Rule 60(B), your Honours can order that this counsel continue to represent this accused. That may be directed by the Trial Chamber in the interest of justice.
Now, we have seen this attempt at manipulation of these proceedings at the beginning, and now we are seeing it at the end. The reason we are in this situation is through the wilful, conscious choices of this accused to which his Defence team acceded, but we must remember that that Defence team has an obligation as officers of this Court as well. It is their choice that they do not present oral argument; it is not their choice that they withdraw from this case or that the accused leave the courtroom unless your Honours permit the accused and the counsel to do so.