Court name
Special Court for Sierra Leone
Case number
SCSL 15 of 2004
Case name

Prosecutor v Issa Hassan Sesay & Ors - Decision on the Gbao and Sesay Joint Application for the Exclusion of the Testimony of Witness Tf1-141
Law report citations
Media neutral citation
[2005] SCSL 156


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

PHONE: +1 212 963 9915
Extension: 178 7000 or +39 0831 257000 or +232 22 295995

FAX:
Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22
295996


TRIAL CHAMBER I


Before:
Hon. Justice Pierre Boutet, Presiding Judge
Hon. Justice Bankole
Thompson
Hon. Justice Benjamin Mutanga Itoe
Interim Registrar:
Lovemore Green Munlo
Date:
26th of October 2005
PROSECUTOR
Against
ISSA HASSAN SESAY
MORRIS KALLON
AUGUSTINE
GBAO

(Case No. SCSL-04-15-T)


DECISION ON THE GBAO AND SESAY JOINT
APPLICATION

FOR THE EXCLUSION OF THE TESTIMONY OF WITNESS
TF1-141


Office of the Prosecutor:

Defence Counsel for Issa Hassan
Sesay
:
Luc Côté
Lesley Taylor
Peter Harrison

Wayne Jordash
Sareta Ashraph


Defence Counsel for Morris
Kallon
:
Shekou Touray
Melron Nicol-Wilson


Defence Counsel for Augustine Gbao
Andreas
O’Shea
John Cammegh


TRIAL CHAMBER I (“Chamber”) of the Special Court for
Sierra Leone (“Special Court”) composed of Hon. Justice Pierre
Boutet,
Presiding Judge, Hon. Justice Bankole Thompson, and Hon. Justice
Benjamin Mutanga Itoe;

SEIZED OF the Gbao and Sesay Joint Defence Application for the
Exclusion of the Testimony of Witness TF1-141
filed on the
17th of May 2005 (“Application”) by Counsel
for the Accused Augustine Gbao and Issa Hassan Sesay (“Defence”);

NOTING the Prosecution Response to the Gbao and Sesay Joint
Application for the Exclusion of Witness TF-141’s Testimony
filed on
the 27th of May 2005 (“Response”) by the
Office of the Prosecutor (“Prosecution”);

NOTING the Defence Reply to the above-noted Response filed on the
1st of June 2005 (“Reply”);

CONSIDERING that Witness TF1-141 indicated under cross-examination on
the 19th of April 2005 that when he was being
interviewed by Ms. Sharan Parmar of the Prosecution, she was writing with a
pen;

CONSIDERING that the Prosecution indicated on the record on the
19th of April 2005 that there had been several meetings
with Witness TF1-141 at which at least one woman, including Ms. Parmar, was
present
and during which notes were taken, probably on occasion with pen and on
occasion by computer;

CONSIDERING FURTHER that the Prosecution also indicated at that time
that these notes had been destroyed pursuant to an internal policy that exists
within
the Office of the Prosecutor;

MINDFUL OF Article 17(4) of the Statute of the Special Court for
Sierra Leone (“Statute”) and Rules 66, 68, and 70 of the
Rules of Procedure and Evidence of the Special Court for Sierra Leone
(“Rules”);

  1. SUBMISSIONS
    OF THE PARTIES

A) Defence Application

  1. Defence
    submit that the Prosecution has admitted that there were handwritten notes taken
    by the Prosecution during interviews with
    Witness TF1-141 that have since been
    destroyed. They contend that this constitutes a prima facie showing of a
    breach the Prosecution’s disclosure obligations pursuant to Rule 66 of the
    Rules and that the destruction of the
    notes causes obvious prejudice to the
    Defence since they are not able to ascertain the content of the
    notes.[1]
  2. Defence
    submit that the Chamber has the authority under Rule 54 or Rule 89(C) to
    exercise its discretion to exclude evidence. Counsel
    refer to British and
    Canadian case law to assert that a judge may exclude evidence in order to ensure
    a fair trial, including when
    there has been a breach of the rules regulating the
    conduct of
    investigations.[2]
  3. Defence
    submit that it is not necessary for the Chamber to find that there has been an
    abuse of process in order to exclude the testimony
    of Witness TF1-141.
    Moreover, the Defence argue that the destruction of material capable of being
    disclosable pursuant to Rules
    66 or 68 constitutes an abuse of process in
    itself, without requiring evidence of knowledge or bad faith on the part of the
    Prosecution.
    The Defence also assert that the Prosecution was aware of the
    Chamber’s Ruling on Disclosure of Witness Statements of the
    1st of October 2004 which held that any notes taken
    during an interview fall within the definition of a witness statement. Defence
    note
    that the first mention by Witness TF1-141 of Augustine Gbao occurred in an
    interview dated the 9th of October 2004 and submit that
    the Prosecution knowingly or negligently destroyed the notes in
    question.[3]

B) Prosecution Response

  1. In
    its submissions, the Prosecution elaborates on its internal policy regarding
    handwritten notes:

Where hand-written interview notes were taken by
investigators, pursuant to a policy, all information of any evidentiary value
was
transferred to a type-written statement, including exculpatory as well as
inculpatory evidence, in order to fulfil the disclosure
obligation of the
Prosecution. Therefore all the evidence with respect to TF1-141 was disclosed.
In the event other information
is contained in the hand-written notes, such as
investigative leads or the interviewer’s impressions of the witness, that
information
is transferred to a typewritten internal memorandum. The
Prosecution does not retain the hand-written notes since all of the information
has been transferred to the typed
format.[4]

  1. The
    Prosecution submits that its policy regarding the destruction of handwritten
    notes is logical, reasonable and fair. It asserts
    that the practice is based on
    the fact that handwritten notes are often illegible and include both disclosable
    evidence and non-disclosable
    matters including “such things as potential
    investigative leads, impressions, and advice on internal matters of concern to
    the Office of the
    Prosecutor.”[5]
  2. The
    Prosecution submits that the above policy was recently held to be
    “reasonable in the circumstances” by Trial Chamber
    II in
    Prosecutor v. Brima, Kamara and
    Kanu
    [6]
    and that the Defence have not established prima facie proof of a breach
    by the Prosecution of Rules 66 or 68 of the Rules. The Prosecution emphasises
    that since all of the evidence in
    the handwritten notes was transferred to the
    typewritten notes that were disclosed, no information was lost. Thus, the
    Prosecution
    submits that Rule 66 has not been breached, or if it has, it has
    only been breached in a technical manner and that there has also
    been no abuse
    of process.[7]
  3. The
    Prosecution states that Witness TF1-141 was interviewed on several occasions in
    early 2003 by investigators of the Office of the
    Prosecutor and that statements
    from these interviews were disclosed. Legal counsel from the Office of the
    Prosecutor then met with
    the Witness in October 2004 and January 2005 in order
    to conduct “proofings”. According to the Prosecution, the purpose
    of proofing sessions is for counsel to discuss matters, including the
    witness’ proposed evidence, with the witness who has
    little experience
    appearing in court.[8]
  4. The
    Prosecution states that proofing notes from these proofing sessions with Witness
    TF1-141 were disclosed to Defence and contained
    all relevant information that
    was not previously disclosed. The Prosecution notes that during proofings, the
    legal counsel records
    new information provided by the Witness “on the same
    note paper as a great deal of confidential and privileged information
    which is
    not subject to
    disclosure.”[9]
  5. The
    Prosecution submits that notes made during proofings are lawyer’s work
    product that are protected from disclosure in accordance
    with Rule 70(A). In
    support of this assertion, the Prosecution relies on several decisions of the
    International Criminal Tribunal
    for the Former Yugoslavia (“ICTY”)
    and the International Criminal Tribunal for Rwanda (“ICTR”) which
    have
    interpreted Rule 70 of their respective Rules of Procedure and Evidence and
    prosecution
    notes.[10]
  6. In
    conclusion, the Prosecution submits that the Application should be dismissed for
    the following reasons: Rule 70(A) protects Prosecution
    notes from proofing
    sessions from disclosure; the principle of orality means that it is the oral
    testimony of the witness that is
    most significant; there is no prima
    facie
    evidence of a Rule 66 breach since all material that should be
    disclosed has been disclosed in typewritten format and that there
    has been no
    loss of evidence and no abuse of
    process.[11]

C) Defence
Reply

  1. In
    their Reply, Defence submit that the discretion to exclude evidence under Rule
    89(C) is confirmed by Rule 95 of the Rules requiring
    the exclusion of evidence
    where its admission would bring the administration of justice into serious
    disrepute and that evidence
    can also be excluded under other circumstances.
    Defence state that there are no legal authorities directly on point since there
    are
    no other situations in which the Prosecution has destroyed interview
    notes.[12]
  2. The
    Defence reiterate that the Prosecution has the onus to explain the
    non-disclosure of the notes in the face of the prima facie proof that
    they have breached Rule 66. The Defence criticise the general nature of the
    Prosecution explanation which refers to general
    practice as opposed to Witness
    TF1-141 in particular. The Defence suggest that it appears that the Prosecution
    had no specific recollection
    or record of which handwritten notes were destroyed
    and what their content had been. As a result, the Defence submit that the
    Prosecution
    cannot establish that all of the relevant information in the
    handwritten notes for Witness TF1-141 were in fact transferred into
    the typed
    versions that were disclosed. Moreover, the Defence emphasise that the
    inculpatory or exculpatory nature of evidence may
    only become apparent at a
    later stage after the Prosecution has already destroyed the original
    notes.[13]
  3. The
    Defence submit that the Prosecution’s policy in destroying notes prevents
    it from complying with its continuing disclosure
    obligation and deprives the
    Defence and the Chamber of the opportunity to monitor the Prosecution’s
    compliance. The Defence
    opine that there is no rational reason for destroying
    the handwritten notes and that they should be safely secured as is other
    sensitive
    material.[14]
  4. The
    Defence refer to the principle of nemo tenetur ad impossibile and assert
    that this is not relevant since they have not asked the Prosecution to produce
    the notes but rather seek the remedy of
    exclusion.[15]
  5. In
    conclusion, the Defence submit that the Prosecution’s reliance on a policy
    cannot justify this prima facie breach of Rule
    66.[16]

II. APPLICABLE LAW

  1. Rule
    66 of the Rules of Procedure and Evidence provides
    that:

Rule 66: Disclosure of
materials by the Prosecutor

(A) Subject to the provisions of Rules 50, 53, 69 and 75, the Prosecutor
shall:

(i) Within 30 days of the initial appearance of an accused, disclose to the
Defence copies of the statements of all witnesses whom
the Prosecutor intends to
call to testify and all evidence to be presented pursuant to Rule 92 bis
at trial.

(ii) Continuously disclose to the Defence copies of the statements of all
additional prosecution witnesses whom the Prosecutor intends
to call to testify,
but not later than 60 days before the date for trial, or as otherwise ordered by
a Judge of the Trial Chamber
either before or after the commencement of the
trial, upon good clause being shown by the Prosecution. Upon good cause being
shown
by the Defence, a Judge of the Trial Chamber may order that copies of the
statements of additional prosecution witnesses that the
Prosecutor does not
intend to call be made available to the defence within a prescribed time.

(iii) At the request of the defence, subject to Sub-Rule (B), permit the
defence to inspect any books, documents, photographs and
tangible objects in his
custody or control, which are material to the preparation of the defence, upon a
showing by the defence of
categories of, or specific, books, documents,
photographs and tangible objects which the defence considers to be material to
the
preparation of a defence, or to inspect any books, documents, photographs
and tangible objects in his custody or control which are
intended for use by the
Prosecutor as evidence at trial or were obtained from or belonged to the
accused.

(B)    Where information or materials are in the possession
of the Prosecutor, the disclosure of which may prejudice further
and ongoing
investigations, or for any other reasons may be contrary to the public interest
or affect the security interests of any
State, the Prosecutor may apply to a
Judge designated by the President sitting ex parte and in camera,
but with notice to the Defence, to be relieved from the obligation to disclose
pursuant to Sub-Rule (A). When making such an application
the Prosecutor shall
provide, only to such Judge, the information or materials that are sought to be
kept confidential.

  1. Rule
    68 further provides for the disclosure obligations of exculpatory evidence by
    the Prosecution. It states:

Rule 68: Disclosure of Exculpatory
Evidence

(A) The Prosecutor shall, within 14 days of receipt of the Defence Case
Statement, make a statement under this Rule disclosing to
the defence the
existence of evidence known to the Prosecutor which may be relevant to issues
raised in the Defence Case Statement.



(B) The Prosecutor shall, within 30 days of the initial appearance of the
accused, make a statement under this Rule disclosing to
the defence the
existence of evidence known to the Prosecutor which in any way tends to suggest
the innocence or mitigate the guilt
of the accused or may affect the credibility
of prosecution evidence. The Prosecutor shall be under a continuing obligation
to disclose
any such exculpatory material.

  1. Rule
    70 legislates exceptions to the general disclosure obligations and provides
    that:

Rule 70: Matters not Subject to Disclosure

(A)      Notwithstanding the provisions of Rules 66 and
67, reports, memoranda, or other internal documents prepared
by a party, its
assistants or representatives in connection with the investigation or
preparation of the case, are not subject to
disclosure or notification under the
aforementioned provisions.

III. MERITS OF THE APPLICATION

A) Prosecution’s Disclosure Obligations

  1. As
    regards the Prosecution’s disclosure obligations, this Court has made it
    abundantly clear that the Prosecution has an obligation
    to continuously disclose
    witness statements in accordance with Rule 66 of the Rules. In that context,
    this Chamber has given a broad
    interpretation as to what constitutes a witness
    statement within the meaning of Rule 66. Recently, in one of our Decisions, we
    stated
    as follows:

The fact that a witness statement is not,
grammatically or, from the point of view of syntax, is not in the ‘first
person’
but in the ‘third person’ goes more to form
than to substance,
and does not deprive the materials in question of
the core quality of a statement. The Trial Chamber agrees with the assertion
given
by the Prosecution at the 1 June 2004 Status conference that a statement
can be, “anything that comes from the mouth of the
witness”
regardless of the format. By parity of reasoning, the fact that a statement
does not contain a signature, or is not
witnessed does not detract from its
substantive validity.

In this regard, we are of the opinion and we so hold, that any statement or
declaration made by a witness in relation to an event
he witnessed and recorded
in any form by an official in the course of an investigation, falls within the
meaning of a ‘witness
statement’ under Rule 66(A)(i) of the
Rules. [17] [Emphasis
in original.]

  1. It
    is noteworthy, however, that Rule 70(A) of the Rules provides that
    “reports, memoranda, or other internal documents prepared
    by a party, its
    assistants or representatives in connection with the investigation or
    preparation of the case” are not subject
    to disclosure under Rule 66.
    Thus, internal documents prepared by the Prosecution or the Defence “in
    connection with an investigation
    or the preparation of a
    case”[18]
    are not disclosable.
  2. We
    held that, in accordance with these provisions, the Prosecution is therefore
    obligated to disclose all witness statements in its
    possession, in whatever form
    they may exist, unless the information contained therein is exempted in whole or
    in part from disclosure
    in accordance with Rule 70.
  3. As
    to its disclosure obligation under Rule 66, this Chamber has ruled that in order
    to establish that the Prosecution has breached
    its disclosure obligations under
    the said Rule, the Defence must “make a prima facie showing of
    materiality and that the requested evidence is in the custody or control of the
    Prosecution.”[19]
  4. This
    Chamber has also affirmed that additionally, Rule 68 of the Rules requires the
    Prosecution to disclose continuously exculpatory
    evidence, that is,
    “evidence that in anyway leads to suggest the innocence of the accused, or
    evidence that in anyway tends
    to mitigate the guilt of accused or evidence
    favourable to the accused that may affect the credibility of the prosecution
    evidence.”[20]
  5. We
    recall here that in the “Decision on Sesay – Motion Seeking
    Disclosure of the Relationship Between Governmental Agencies
    of the United
    States of America and the Office of the Prosecutor”, we ruled that in
    order to establish that the Prosecution
    has breached its Rule 68 disclosure
    obligations, the Defence must demonstrate, by prima facie
    proof:

(1) that the targeted evidentiary material is exculpatory in
nature, (2) the materiality of the said evidence, (3) that the Prosecution
has,
in its possession, custody, or control, the targeted exculpatory evidentiary
material, and (4) that the Prosecution has, in
fact, failed to disclose the
targeted exculpatory evidentiary
material.[21]

Our subsequent decisions on this issue have consistently applied this
standard.

B) Investigators’ Notes

  1. In
    its Response, the Prosecution stated that the original notes taken by
    investigators of the Office of the Prosecutor during interviews
    contain
    different types of information. According to the Prosecution, all information
    of evidentiary value, including inculpatory
    and exculpatory evidence, is then
    transferred to a typed statement that is disclosed to Defence in accordance with
    Rules 66 and 68.
    The Prosecution further disclosed that any remaining
    information relating to investigative leads, the interviewer’s impression
    of the witness and advice on internal matters is transferred to a typed internal
    memorandum that is not subject to disclosure in
    accordance with Rule 70(A), and
    the original handwritten notes are then destroyed.
  2. The
    Defence argued that this destruction of the original notes is a breach of the
    Prosecution’s obligation to disclose witness
    statements pursuant to Rule
    66 and a potential breach of its obligation to disclose exculpatory evidence
    pursuant to Rule 68. The
    Prosecution, on the other hand, maintained that they
    have fully respected their disclosure obligations by disclosing all of the
    evidence
    contained in the original interview notes. Alternatively, the
    Prosecution submitted that if there had been a breach, it was merely
    of a
    technical nature and could not be considered as an abuse of process.
  3. In
    its Response to a Defence Application in the case of Prosecutor v.
    Norman
    , the Prosecution had contended that the entirety of the handwritten
    notes taken by the investigator while interviewing Witness TF2-162
    were
    protected from disclosure under Rule 70(A). This Chamber, in its “Ruling
    on Disclosure of Witness Statements” did
    not accept this assertion and we
    found instead that interview notes recorded by the Prosecution, in whatever
    form, are the witness’
    statements and were thus disclosable under Rule
    66(A)(i) of the
    Rules.[22] In its
    Submission that was filed in response to this Decision ordering the disclosure
    of copies of all handwritten interview notes
    taken for or from Witness TF2-162,
    the Prosecution thereafter clarified their position by stating that there were
    no such notes as
    they had been destroyed in accordance with the Prosecution
    internal policy after all disclosable information had been transferred
    to an
    “Interview Report” that was disclosed to the
    Defence.[23]
  4. The
    Chamber reiterates its findings of the 1st of October
    2004 that investigators’ notes, in whatever form they may be, taken during
    interviews with witnesses constitute
    witness statements and are thus
    disclosable. However, this Court recognises that investigators’ notes may
    also contain, in
    addition to the witness statements, information that should be
    protected from disclosure pursuant to Rule 70(A) when the information
    relates
    solely to matters internal to the investigation or prosecution.

C) Proofing Sessions

  1. The
    records show that the original notes that are the object of this Application
    were taken by counsel with the Office of the Prosecutor,
    Ms. Sharan Parmar,
    during “proofing” sessions in October 2004 and January 2005 with
    Witness TF1-141 and that supplemental
    statements or proofing notes containing
    new evidence or amendments to previously disclosed evidence were disclosed to
    the Defence
    while the original notes were
    destroyed.[24]
  2. It
    is instructive to note that the Trial Chamber of the ICTY examined the practice
    of Prosecution proofing sessions in the case of
    Prosecutor v.
    Limaj
    .[25] It
    observed that there was a widespread practice of proofing witnesses by both the
    Prosecution and the Defence in adversary systems.
    The Chamber then identified a
    number of advantages that the practice of proofing has for the judicial process
    in these terms:

It must be remembered that when a witness is
proofed this is directed to identifying fully the facts known to the witness
that are
relevant to the charges in the actual Indictment....

... The process of human recollection is likely to be assisted, in these
circumstances, by a detailed canvassing during the pre-trial
proofing of the
relevant recollection of a witness. Proofing will also properly extend to a
detailed examination of deficiencies
and differences in recollection when
compared with each earlier statement of the witness. In particular, such
proofing is likely
to enable the more accurate, complete, orderly and efficient
presentation of the evidence of a witness in the trial.

Very importantly, proofing enables differences in recollection, especially
additional recollections, to be identified and notice of
them to be given to the
Defence, before the evidence is given, thereby reducing the prospect of the
Defence being taken entirely
by
surprise.[26]

  1. The
    Prosecution submitted that notes made by counsel during proofing sessions are
    lawyer’s “work product” not subject
    to disclosure in
    accordance with Rule 70(A).
  2. The
    Chamber is mindful of the decision of the Trial Chamber of the ICTY in the case
    of Prosecutor v. Blagojevic where it was stated that:

Rule
70(A) aims to protect work product from disclosure, as it is in the pubic
interest that information related to the internal preparation
of a case,
including legal theories, strategies and investigations, shall be privileged and
not subject to disclosure to the opposing
party.[27]

  1. The
    Chamber finds that proofing witnesses prior to their testimony in court is a
    legitimate practice that serves the interests of
    justice. This is especially so
    given the particular circumstances of many of the witnesses in this trial who
    are testifying about
    traumatic events in an environment that can be entirely
    foreign and intimidating for them.
  2. We
    consider, however, that notes taken by counsel from the Office of Prosecutor
    during these proofing sessions may contain a combination
    of material, some of
    which is disclosable under Rules 66 and 68 of the Rules and some of which may
    not be subject to disclosure in
    accordance with Rule 70(A). It is our view that
    any new evidence elicited during these proofing sessions must be disclosed on a
    continuing basis in accordance with Rules 66 and 68. Furthermore, we hold that
    those portions of the notes that relate to the internal
    preparation for the
    Prosecution case that constitute work product, however, are not disclosable.

D) Application in this Case

  1. The
    Defence accept the Prosecution’s assertion in this case that it is not in
    possession of any of the original handwritten
    notes taken by Ms. Parmar since
    they were destroyed in accordance with the internal policy of the Office of the
    Prosecutor. As a
    result, the Defence are not seeking disclosure of these notes,
    but rather the alternative remedy that the entire testimony of Witness
    TF1-141
    be excluded.
  2. This
    Chamber has already noted that whilst “as a general rule, the judicially
    preferred remedy for a breach of disclosure obligations
    by the Prosecution is an
    extension of time to enable the Defence to adequately prepare their case”
    and not an exclusion of
    the evidence, in some circumstances, however, the remedy
    of exclusion could be
    appropriate.[28]
    Therefore, if disclosure cannot be ordered due to the destruction of the
    original notes and there has been a demonstration of bad
    faith, a lack of due
    diligence or an otherwise serious breach of Rule 66 or 68 that would unfairly
    prejudice the Defence, the Chamber
    recognises that the exclusion of the evidence
    in question may be the appropriate remedy.
  3. The
    Defence submitted that the Prosecution’s policy in destroying the original
    notes taken during interviews prevents it from
    complying with its continuing
    disclosure obligations and deprives the Defence and the Chamber of the
    opportunity to monitor the Prosecution’s
    compliance with its
    obligations.[29] The
    Prosecution, for its part, contended that the original handwritten notes are
    often illegible and that the notes essentially
    serve no purpose once all of the
    material contained therein is transferred to other Prosecution documents. It
    maintained that its
    policy is “logical, reasonable and
    fair”.[30]
  4. Based
    on the relevant considerations herein on this issue, and in particular the
    assertion by the Prosecution that it had in fact
    disclosed all the information
    disclosable under Rules 66 and 68, the Chamber finds, and accordingly rules,
    that the Defence have
    failed to establish on a prima facie basis that
    there was any disclosable material in the handwritten notes that was not
    subsequently disclosed in the typewritten form.
    The Chamber opines strongly
    that the right of the Defence to disclosure pursuant to Rules 66 and 68 does not
    entitle the Defence
    to a particular form in which the material must be
    disclosed
  5. We
    conclude, therefore, that the Defence has not established that the Prosecution
    has breached its obligations under Rules 66 and
    68 by disclosing a typewritten
    version of the interviews with Witness TF1-141 instead of the original
    handwritten notes.
  6. Furthermore,
    the Defence submitted forcefully that the very fact of destroying disclosable
    material constitutes an abuse of process
    since it scars the “integrity of
    the
    proceedings”.[31]
    The Defence also argued that the Prosecution exhibited bad faith by continuing
    to destroy the original notes from the proofing sessions
    with TF1-141 that
    occurred after the release of the Chamber’s Prosecutor v.
    Norman
    [32]
    decision which found that handwritten investigators’ notes constitute
    witness statements and should therefore be
    disclosed.[33]
  7. This
    Chamber does not accept that the Prosecution’s destruction of original
    notes, after ensuring that all of the information
    contained therein is
    transferred either to typewritten statements that are disclosed or to internal
    memoranda that contain Rule 70(A)
    material, would constitute an abuse of process
    in the circumstances.
  8. We
    acknowledge that the notes in question in this Application were taken by
    Prosecution counsel during proofing sessions with Witness
    TF1-141 after the
    release of the Norman decision. It is clear from the submissions made
    during the trial against the Accused Sesay, Kallon and Gbao on the
    4th of October 2004 that the Prosecution was drawing a
    distinction between investigators’ notes and notes taken by counsel in the
    preparation and conduct of a case that are protected from disclosure as work
    product under Rule 70(A) of the
    Rules.[34] As a
    result, this Chamber is not satisfied that the destruction of the notes of
    counsel in accordance with the existing policy after
    the
    1st of October 2004 demonstrates any bad faith on the
    part of the Prosecution. The Chamber therefore finds no legal basis for the
    contention
    of prosecutorial bad faith, and accordingly reject it.
  9. In
    conclusion, therefore, the Chamber finds that the Defence has not established
    prima facie evidence that the Prosecution has breached its disclosure
    obligations under Rules 66 and 68 or committed an abuse of process by destroying
    the original notes in accordance with a policy adopted by the Office of the
    Prosecutor.
  10. The
    foregoing findings notwithstanding, the Chamber views with some disfavour the
    internal Prosecution policy to destroy original
    notes once the contents of the
    notes have been transferred to other documents and expresses a preference for
    such notes to be maintained
    and preserved.
  11. The
    Chamber observes that copies of the original handwritten notes should, where
    possible, be disclosed with those portions that are
    protected under Rule 70(A)
    redacted as necessary.

IV. DISPOSITION

  1. Accordingly,
    the Application for the exclusion of the testimony of Witness TF1-141 is
    DENIED.
Done at Freetown, Sierra Leone, this 26th day of
October 2005

Hon. Justice Benjamin Mutanga Itoe

Hon. Justice Pierre Boutet

Hon. Justice Bankole Thompson

Presiding Judge
Trial Chamber I


[Seal of the Special Court for Sierra Leone]



[1] Application,
para. 6.
[2]
Id., paras
7-8.
[3] Id.,
paras 10-11.
[4]
Response, para. 5.

[5] Id.,
para. 9.
[6]
Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16, “Decision on
Joint Defence Motion on Disclosure of All Original Witness Statements, Interview
Notes and Investigators’
Notes Pursuant to Rules 66 and/or 68”, 4
May 2005, para.
18.
[7] Response,
paras 10 and
12-13.
[8]
Id., paras 15 and
17.
[9]
Id.
[10]
Id., paras
17-23.
[11]
Id., paras
24-25.
[12] Reply,
paras 1-3.
[13]
Id., paras
5-9.
[14]
Id., paras
8-10.
[15]
Id., para.
11.
[16]
Id., para.
12.
[17]
Prosecutor v. Norman, Fofana and Kondewa, SCSL-04-14-T, “Decision
on Disclosure of Witness Statements and Cross-Examination”, 16 July 2004,
paras 22-23.
[18]
Prosecutor v. Norman, Fofana and Kondewa, SCSL-04-14-T, “Ruling on
Disclosure of Witness Statements”, 1 October 2004, para. 15.

[19] Prosecutor
v. Sesay, Kallon and Gbao
, SCSL-04-15-T, “Sesay – Decision on
Defence Motion for Disclosure Pursuant to Rules 66 and 68 of the Rules”, 9
July 2004, para. 27.

[20] Prosecutor
v. Sesay, Kallon and Gbao
, SCSL-04-15-T, “Decision on Sesay - Motion
Seeking Disclosure of the Relationship Between Governmental Agencies of the
United
States of America and the Office of the Prosecutor”, 2 May 2005,
para. 35.
[21]
Id., para. 36.

[22] Prosecutor
v. Norman, Fofana and Kondewa
, supra note 18, paras 10 and
16.
[23]
Prosecutor v. Norman, Fofana and Kondewa, SCSL-04-14-T,
“Prosecution Submission Regarding
‘Ruling on Disclosure of
Witness Statements’ Dated 1 October 2004”, 15 October 2004.

[24] Response,
para. 15.
[25]
Prosecutor v. Limaj, Bala and Musliu, IT-03-66-T, “Decision on
Defence Motion on Prosecution Practice of ‘Proofing’
Witnesses”, 10 December 2004.


[26] Id.,
p. 2.
[27]
Prosecutor v. Blagojevic and Jokic, IT-02-60-T, “Decision on
Videoje Blagojevic’s Expedited Motion to Compel the Prosecution to
Disclose its Notes from
Plea Discussions with the Accused Nikolic & Request
for an Expedited Open Session Hearing”, 13 June 2003.

[28] Prosecutor
v. Sesay, Kallon and Gbao
, SCSL-04-15-T, “Ruling on Disclosure
Regarding Witness TF1-195”, 4 February 2005, para. 7.


[29] Reply, paras
8-10.
[30]
Response, para. 9. The Prosecution relies on the finding of Trial Chamber II
“that the procedure adopted by the Prosecution
to separate disclosable and
non-disclsoable material by reducing the disclosable material to the form of a
witness was reasonable
in the circumstances.” Prosecutor v. Brima,
Kamara and Kanu, supra
note 7, para.
18.
[31]
Application, para. 9.

[32]
Prosecution v. Norman, Fofana and Kondewa, supra note 18.
[33]
Application, paras
10-11.
[34]
Transcripts of Trial Proceedings, 4 October 2004, p. 28-35. While no conclusion
was reached on that day as submissions by the parties
were invited, Hon. Justice
Thompson indicated that the Norman decision left open the possibility
that work product may be immune from disclosure.