PROSECUTOR v ALEX TAMBA BRIMA & ORS - COMMENT OF JUSTICE DOHERTY (SCSL-04-16-PT)  SCSL 127 (05 August 2005);
COMMENT OF JUSTICE DOHERTY
Having read the Dissenting Opinion of the Hon. Justice Sebutinde from the Majority Decision on the Extremely Urgent Confidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, and Decision on Cross-Motion by the Deputy Principal Defender to Trial Chamber II for Clarification of its Oral Order of 12 May 2005 [hereinafter “Dissenting Opinion”] I consider some facts stated are incorrect or misleading. I was not given a copy of the Dissenting Decision prior to publication. I consider Rule 29 of the Rules of Procedure and Evidence does not permit any Judge to publish or discuss matters that have been discussed in Chambers however since several matters have been brought into the public arena by the publication of both the Dissenting Opinion and the interoffice memorandum I consider I am entitled to put the following before the Appeal Chamber:
- At paragraph 29 of the Dissenting Opinion Her Honour states that “Before Ms. Carlton-Hanciles had an opportunity to disclose the contents of a document the Presiding Judge interjected...” thereby implying that this was a sole decision of the Presiding Judge. This implication is erroneous. The document, a copy letter from the accused persons, was given to each of the judges immediately before court was to open on 16 May 2005. We discussed that document, its implications on the ruling of 12 May and the attitude we should adopt. Hon. Justice Sebutinde took a very active part in that discussion and was one of the majority who decided the document should not be read. My notes show three issues were identified by the judges and those three issues are incorporated into the extempore ruling.
- At paragraph 29 there is a reference to a copy of Ms. Elizabeth Nahamya minute of 17 May 2005 being copied to the Judges. That memorandum was not received by the Judges of Trial Chamber II until the Registrar’s annotated copy was given on 18 May 2005 and we had no opportunity to discuss same prior to meeting the Registrar.
- On 18 May 2005 the Registrar came to Trial Chamber II Chambers at the invitation of the Judges to discuss a matter entirely unrelated to the issues therein. At the end of our discussions he raised the issue of Ms. Nahamya’s minute. There was an active discussion and Hon. Justice Sebutinde was there throughout that discussion. The matters recorded in my minute are an ad verbatim record of statements made. Justice Sebutinde did not speak on the matter, neither did she dispute nor resile from the discussions. The Registrar asked for written confirmation the same day as he was leaving for New York.
- It is correct that I telephoned each of the Judges and read out the draft to each of my judicial colleagues. It was only then that Justice Sebutinde stated she had reservations. I asked her to let me have her views as the Registrar needed a response that day. I waited, sent, then retrieved the minute pending Justice Sebutinde’s input. When none was received I again sent the minute prior to Registrar’s departure. I dispute the detail Justice Sebutinde gives in paragraph 2 of interoffice memorandum. The detailed memorandum referred to paragraph 30 of the Dissenting Opinion was not received until 19 May 2005 and it was not sent solely to me as Presiding Judge but also disseminated to others. It is correct that, as stated at paragraph 31 that I did not distinguish Justice Sebutinde’s views. I did not have those views.
- I stress that the decision of 16 May 2005 and discussion of 18 May 2005 involved all three judges of the Trial Chamber. We had no knowledge of the pending motion filed on 24 May 2005 and cannot be said to have contributed to controversy as implied in paragraph 41.
- It is correct I gave Justice Sebutinde a copy of the minute to the Registrar when she asked me for it. I did so stating twice it was a chambers matter subject to Rule 29 and could not be published.
Done at Freetown, Sierra Leone, this 5th day of August 2005.
Justice Teresa Doherty
[Seal of the Special Court for Sierra Leone]